AGRIC.   DEPT,       Mai 


[AGRICULTURAL 
I .     LIBRARY, 

IRRIGATION  STATUTES 

CALIFORNIA 


Revised  Statutes  of  Colorado 
1908 


ALSO 


Laws  Passed  by  the  Seventeenth  General 
Assembly  Relating  to  Irrigation 


AND 


Supreme  Coijrt  Decisions 


Published  by  Authority 


PRICE,  $1.00 


THE  SMITH-BROOKS    ?UiN  i.  'N  G   C  O,.  .''STATE    ^ 


. 

Azric.  Dept 


MU.I4K 

., 

~° 


PREFACE 

DEFT. 


The  office  of  State  Engineer  was  originally  created  for  the 
purpose  of  administering  the  decrees  of  court,  rendered  under 
the  irrigation  statutes,  and  it  is  the  duty  of  the  officers  of  this 
department  to  execute  these  decrees,  and  in  order  that  the  rights 
of  all  users  of  water  mar  be  properly  protected  and  to  bring 
about  a  uniformity  in  the  distribution  of  water  an  accurate 
knowledge  of  the  statutes,  as  well  as  the  interpretation  placed 
thereon  by  the  courts  of  last  resort,  is  fundamentally  necessary. 

The  recent  compilation  of  the  statutes  of  Colorado  brought 
the  irrigation  statutes  into  compact  form,  and  this  bulletin  re- 
produces the  chapter  on  Irrigation  from  the  Revised  Statutes  of 
Colorado,  1908,  exactly  as  published. 

In  the  preparation  of  this  work  a  careful  examination  has 
been  made  of  all  the  decisions  relative  to  irrigation  and  water 
rights  rendered  by  the  Supreme  Court  and  Court  of  Appeals  of 
this  State,  and  almost  verbatim  extracts  therefrom  have  been 
taken,  following  the  topical  .headings  of  the  Revised  Statutes. 

The  celebrated  decision  of  the  United  States  Supreme  Court 
in  the  Kansas-Colorado  case,  involving  the  right  of  the  State  to 
the  use  of  the  waters  of  the  Arkansas  river  for  irrigation,  is  like- 
wise included  in  this  work. 

The  extracts  of  the  decisions  of  the  courts  were  compiled 
by  Harvey  E.  Rockwell,  Esq.,  of  the  Denver  Bar. 

To  assist  in  the  more  equitable  distribution  of  water  through- 
out the  State,  and  to  meet  the  constant  and  increasing  demand 
on  the  part  of  the  public  for  the  irrigations  laws  of  Colorado 
in  convenient  form,  this  book  was  compiled,  and  is  now  published 
with  the  hope  that  it  will  prove  of  benefit  in  accomplishing  the 
ends  which  prompted  its  compilation. 

T.  W.  JAYCOX, 

State  Engineer. 


CONSTITUTION  OF  THE  STATE  OF 
COLORADO 


Article   XVI. 


IRRIGATION. 

See.  5.  Water,  public  property. — The  water  of  every  natural 
stream,  not  heretofore  appropriated,  within  the  state  of  Colo- 
rado, is  hereby  declared  to  be  the  property  of  the  public,  and 
the  same  is  dedicated  to  the  use  of  the  people  of  the  state,  sub- 
ject to  appropriation  as  hereinafter  provided. 

Sec.  6.  Diverting  unappropriated  water — Priority. — The  right 
to  divert  the  unappropriated  waters  of  any  natural  stream  to 
beneficial  uses  shall  never  be  denied.  Priority  of  appropriation 
shall  give  the  better  right  as  between  those  using  the  water  for 
the  same  purpose;  but  when  the  waters  of  any  natural  stream 
are  not  sufficient  for  the  service  of  all  those  desiring  the  use  of 
the  same,  those  using  the  water  for  domestic  purposes  shall  have 
the  preference  over  those  claiming  for  any  other  purpose,  and 
those  using  the  water  for  agricultural  purposes  shall  have  pref- 
erence over  those  using  the  same  for  manufacturing  purposes. 

Sec.  7.  Right  of  way  for  ditches — Flumes. — All  persons  and 
corporations  shall  have  the  right  of  way  across  public,  private 
and  corporate  lands  for  the  construction  of  ditches,  canals  and 
flumes  for  the  purpose  of  conveying  water  for  domestic  purposes, 
for  the  irrigation  of  agricultural  lands,  and  for  mining  and  man- 
ufacturing purposes,  and  for  drainage,  upon  payment  of  just 
compensation. 

Sec.  8.  County  commissioners  fix  rates  for  water. — The  Gen- 
eral Assembly  shall  provide  by  law  that  the  board  of  county  com- 
missioners in  their  respective  counties  shall  have  power,  when 
application  is  made  to  them  by  either  party  interested,  to  estab- 
lish reasonable  maximum  rates  to  be  charged  for  the  use  of 
water,  whether  furnished  by  individuals  or  corporations. 

280200 


CHAPTER  LXXIL 


IRRIGATION. 

I.     RIGHT   OF   WAY — APPROPRIATION — USE   OF   WATER. — 3165- 

3232. 

II.     DUTIES  OF  OWNERS.— 3233-3261. 
III.     RATE  OF  C  ARGE  FOR  WATER.— 3262-3275. 
IV.     ADJUDICATION  OF  PRIORITIES. — 3276-3320. 

V.     STATE  ENGINEER.— 3321-3334. 

VI.     IRRIGATION  DIVISIONS — DIVISION  ENGINEERS. — 3335-3352. 
VII.     WATER  DISTRICTS— WATER  COMMISSIONERS. — 3353-3439. 
VIII.     IRRIGATION  DISTRICTS. — 3440-3494. 
IX.     OFFENSES.— 3495-3498. 

X.     STATE  CANALS  AND  RESERVOIRS  AND  THE  CONTROL  THEREOF. 
—3499-3562. 


I.     RIGHT   OF  WAY— APPROPRIATION— USE    OF   WATER. 


Section. 

3165.  Owners       of       land       on 

streams  entitled   to  use 
of  water. 

3166.  When  water  to  be  allotted 

on  alternate  days. 

3167.  Right     of     way     through 

other  lands. 

3168.  Extent  of  right  of  way. 

3169.  Condemnation  of  right  of 

way. 

3170.  No    land    burdened    with 

more  than  one  ditch,  ex- 
cept. 

3171.  Shortest    route    must   be 

taken. 

3172.  Owner  of  ditch  must  per- 

mit others  to  enlarge. 

3173.  When  head  of  ditch  may 

be  extended  up  stream — 
Condemnation. 

3174.  Only  irrigation  ditches  re- 

ferred to   in  above   sec- 
tion. 

3175.  Water    to     be    pro    rated 

among  consumers. 

3176.  Irrigation    of    meadows — 

Right    to   make    ditch- 
Priority. 


Section. 

3177.  Priority  of  right  to  seep- 

age or  spring  water. 

3178.  Water    appropriated     for 

domestic  purposes  shall 
not  be  employed  for  ir- 
rigation. 

3179.  Penalty     for     misapplica- 

tion— Jurisdiction  of  jus- 
tice. 

3180.  Right  to   place  wheel  oil 

stream. 

3181.  Map  of  ditch  or  reservoir 

to  be  filed. 

3182.  Statement      attached      to 

map. 

3183.  Statement  in  case  of  en- 

largement —  Temporary 
map. 

3184.  Statement  must  be  signed 

and  sworn  to.    . 

3185.  State    engineer    examine 

maps  and  statements — 
Return  duplicate  —  Du- 
plicate filed  with  re- 
corder. 

3186.  Certified  copy  evidence — 

Diligent  construction. 


Section. 

3187.  Compliance    with    former 

act. 

3188.  Petition    to    establish    or 

enlarge  drain. 

3189.  Contents     of       petition — 

Plat. 

3190.  Bond  of  petitioner. 

3191.  Board  of  viewers — Duties 

— Hearing — Notice. 

3192.  Hearing—  Evidence— Re- 

port— When   joint   hear- 
ing. 

3193.  When    improvement    not 

feasible. 

3194.  When    feasible — Report — 

Appeal. 

3195.  Allotment  of  work — Bond. 

3196.  When    work    let    by    con- 

tract — Advertise  for  bids 
— Bond. 

3197.  Completion — Expense   pro 

rated — County  treasurer 
collect. 

3198.  Acceptance — Vouchers. 

3199.  Compensation     o  f     engi- 

neers and  viewers. 

3200.  Right  of  eminent  domain. 

3201.  Disposition      of      water 

drained. 

3202.  Right  to    take    water  for 

reservoir — Right  of  way 
— Embankment. 

3203.  Conducting      water     in 

streams — Taking     out — 
How  about  determined. 

3204.  Liability     of     owner     for 

damage. 

3205.  Construction  of  reservoirs 

— State  engineer   super- 
vise. 

3206.  Cost  of  inspection  and  su- 

pervision paid  by  owner. 

3207.  Engineer       determine 

amount  of  water  to    be 
stored. 

3208.  Water  commissioner  with- 

draw     excess      water — 
Close  inlets. 

3209.  Complaint   that   reservoir 

is  unsafe — Duty  of  engi- 
neer. 


Section. 

3210.  Engineer  may  use  force — 

Violation    of    engineer's 
order. 

3211.  Expense  of  examination — 

By  whom  paid. 

3212.  Appeal    from    decision    of 

engineer. 

3213.  Owner  liable  for  damages 

in   case   of  breakage   of 
reservoir. 

3214.  Violation  of  act— Penalty 

— Disposition  of  fines. 

3215.  Survey    of   reservoir    site 

on  arid  land. 

3216.  Construction  of  reservoir 

— County    surveyor     su- 
pervise. 

3217.  Completion — Plat     filed — 

Contents. 

3218.  Approval  of  plat— Duty  of 

owner. 

3219.  Inspection  —  Notice    to 

owner — Failure     to     re- 
pair. 

3220.  Compensation    of    county 

surveyor  —  By   whom 
paid. 

3221.  Damages. 

3222.  Exchange    of    water    less 

seepage. 

3223.  Must  maintain  flumes  and 

register  water. 

3224.  Water  commissioner  keep 

record. 

3225.  Reservoirs     and     ditches 

may  exchange. 

3226.  Changing  point   of   diver- 

sion— Petition — Practice 
and  procedure. 

3227.  Notice  to  parties  affected 

— When  change  allowed. 

3228.  Several      applications     in 

one  —  Cons  olidation — 
'     Process. 

3229.  Certified    copy    of    decree 

filed — Notice  of  change. 

3230.  Change  to  other  district- 

Copy  of  decree  filed. 

3231.  Re-arguments,  reviews 

and  appeals. 

3232.  Owner  may   exchange   or 

loan  water  rights. 


3165.  Owners  of  land  on  streams  entitled  to  use  of  water. — 
Sec.  1.  All  persons  who  claim,  own  or  hold  a  possessory  right 
or  title  to  any  land  or  parcel  of  land  within  the  boundary  of  the 
state  of  Colorado,  as  denned  in  the  constitution  of  said  state, 
when  those  claims  are  on  the  bank,  margin  or  neighborhood  of 
any  stream  of  water,  creek  or  river,  shall  be  entitled  to  the  use 


of  the  water  of  said  stream,  creek  or  river  for  the  purposes  of 
irrigation,  and  making  said  claims  available  to  the  full  extent 
of  the  soil,  for  agricultural  purposes.  [G.  S.,  §1711;  G.  L.,  §1372; 
K.  S.,  p.  :H>3,  §1;  L.  >61,  p.  67,  §1. 

[Water   rights   conveyed   as   real   estate,    section   669.] 

[When    ditch    exempt    from    taxation,    sections   5545   and   5546.] 

[Mechanic's  lien  attaches  to  water  rights.     Section  4031.] 

3166.  When  water  to  be  allotted  on  alternate  days. — Sec.  2. 
In  case  the  volume  of  water  in  said  stream  or  river  shall  not  be 
sufficient  to  supply  the  continual  wants  of  the  entire  country 
through  which   it  passes,  then  the  county  judge  of  the  county 
shall  appoint  three  commissioners  as  hereinafter  provided,  whose 
duty  it  shall  be  to  apportion  in  a  just  and  equitable  proportion 
a  certain  amount  of  said  water  upon  certain  or  alternate  weekly 
days  to  different  localities,  as  they  may  in  their  judgment  think 
best  for  the  interest  of  all  parties  concerned,  and  with  due  regard 
to  the  legal  rights  of  all.     [G.  S.,  §1714;  G.  L.,  §1375;  L.  '70,  p. 
ir>s,  £1  :  amending  K.  S.,  p.  3(>:>,  §4;  L.  '61,  p.  68,  §4. 

[Is  the  above   provision   for  appointment  of  commissioners  superseded  by 
section  3427?] 

3167.  Right  of  way  through  other  lands. — Sec.  3.     When  any 
person  owning  claims  in  such  locality  has  not  sufficient  length 
of  area  exposed  to  said  stream  to  obtain  a  sufficient  fall  of  wrater 
to  irrigate  his  land,  or  that  his  farm,  or  land  used  by  him  for 
agricultural  purposes,  is  too  far  removed  from  said  stream,  and 
that  he  has  no  water  facilities  on  those  lands,  he  shall  be  entitled 
to  a  right  of  way  through  the  farms  or  tracts  of  lands  which  lie 
between  him  and  said  stream,  or  the  farms  or  tracts  of  land 
which  lie  above  and  below  him  on  said  stream,  for  the  purposes 
hereinbefore  stated.     [G.  S.,  §1712;  G.  L.,  §1373;  R.  S.,  p.  363, 
§2:  L.  '61,  p.  67,  §2. 

3168.  Extent  of  right  of  way. — Sec.  4.     Such  right  of  way 
shall  extend  only  to  a  ditch,  dyke  or  cutting,  sufficient  for  the 
purpose  required.     [G.  S.,  §1713;  G.  L.,  §1374;  R,  S.,  p.  363,  §3; 
L.  '61.  p.  67,  §3. 

3169.  Condemnation  of  right  of  way. — Sec.  5.     Upon  the  re- 
fusal of  the  owners  of  tracts  of  land  or  lands  through  which 
said  ditch  is  proposed  to  run,  to  allow  of  its  passage  through 
their  property,  the  person  or  persons  desiring  to  open  such  ditch 
may   proceed  to  condemn   and  take  the  right  of  way  therefor 
( under  the  provisions  of  chapter  thirty-one  of  these  laws  con- 
cerning eminent  domain).     [G.  S.,  §1715;  G.  L.,  §1376. 

[Chapter  31  above  referred  to  is  found  in  its  amended  form  between  sections 
2415  and  2434.] 


[See   also   Constitution,   article  16,   sections   5-8.] 


8 

3170.  No  land  burdened  with  more  than  one  ditch,  except— 
Sec.  6.     That  no  tract  or  parcel -of  improved  or  occupied  land 
in  this  state,  shall,  Avithout  the  written  consent  of  the  owner 
thereof,  be  subjected  to  the  burden  of  two  or  more  irrigating 
ditches  constructed  for  the  purposes  of  conveying  water  through 
said  property,  to  lands  adjoining  or  beyond  the  same,  when  the 
same  object  can  feasibly  and  practicably  be  attained  by  uniting 
and  conveying  'all  the  water  necessary  to  be  conveyed  through 
such  property  in  one  ditch.     [G.  S.,  §1716;  L.  '81,  p.  164,  §1. 

3171.  Shortest  route  must  be  taken. — Sec.  7.     Whenever  any 
person  or  persons  find  it  necessary  to  convey  water  for  the  pur- 
pose of  irrigation  through  the  improved  or  occupied   lands  of 
another,  he  or  they  shall  select  for  the  line  of  such  ditch  through 
such  property  the  shortest  and  most  direct  route  practicable, 
upon  which  said  ditch  can  be  constructed  with  uniform  or  nearly 
uniform  grade,  and  discharge  the  water  at  a  point  where  it  can 
be  conveyed  to  and  used  upon  land  or  lands  of  the  person  or 
persons  constructing  such  ditch.     [G.  S.,  §1717;  L.  '81,  p.  164,  §2. 

3172.  Owner  of  ditch  must  permit  others  to  enlarge. — Sec.  8. 
No  person  or  persons  having  constructed  a  private  ditch  for  the 
purposes  and  in  the  manner  hereinbefore  provided,  shall  prohibit 
or  prevent  any  other  person  or  persons  from  enlarging  or  using 
any  ditch  by  him  or  them  constructed  in  common  with  him  or 
them,  upon  payment  to  him  or  them  of  a  Reasonable  proportion 
of  the  cost  of  construction  of  said  ditch.     [G.  S.,  §1718;  L.  '81, 
p.  164,  §3. 

3173.  When  head  of  ditch  may  be  extended  up  stream — Con- 
demnation.— Sec.  9.     In  case  the  channel  of  any  natural  stream 
shall   become   so   cut   out,   lowered,   turned   aside   or   otherwise 
changed  from  any  cause,  as  to  prevent  any  ditch,  canal  or  feeder 
of  any  reservoir  from  receiving  the  proper  inflow  of  water  to 
which  it  may  be  entitled  from  such  natural  stream,  the  owner 
or  owners  of  such  ditch,  canal  or  feeder  shall  have  the  right  to 
extend  the  head  of  such  ditch,  canal  or  feeder  to  such  distance 
up  the  stream  which  supplies  the  same  as  may  be  necessary  for 
securing  a  sufficient  flow  of  water  into  the  same,  and  for  that 
purpose  shall  have  the  same  right  to  maintain  proceedings  for 
condemnation  of  right  of  way  for  such  extension  as  in  case  of 
constructing  a  new  ditch,  and  the  priority  of  right  to  take  water 
from   such   stream,  through   such   ditch,   canal   or  feeder  as   to 
any  such  ditch,  canal  or  feeder  shall  remain  unaffected  in  any 
respect  by  reason  of  such  extension :  Provided,  however,  That 
no  such  extension  shall  interfere  with  the  complete  use  or  enjoy- 
ment of  any  ditch,  canal  or  feeder.     [G.  S.,   §1719;  L.  '81.  p. 
161,  §1. 

[For  right  of  condemnation  for  new  ditch  see  section  3169.] 


3174.  Only  irrigation  ditches  referred  to  in  the  last  above  sec- 
tion.— Sec.  10.     This  act  shall  apply  to  and  affect  only  ditches, 
canals  or  feeders  used  for  carrying  water  for  the  purpose  of 
irrigation,  and  for  no  other  purpose  whatever.     [G.  S.,  §1721; 
L.  '81,  p.  162,  §3. 

[The   act  referred   to   is  found  in   L.    '79,   p. '95,   et  seq.] 

3175.  Water  to  be  pro  rated  among  consumers. — Sec.  11.     If 
at  any  time  any  ditch  or  reservoir  from  which  water  is  or  shall 
be  drawn  for  irrigation  shall  not  be  entitled  to  a  full  supply 
of  water  from  the  natural  stream  which  supplies  the  same,  the 
water  actually  received  into  and,  carried  by  such  ditch,  or  held 
in  such  reservoir,  shall  be  divided  among  all  the  consumers  of 
water  from  such  ditch  or  reservoir,  as  well  as  the  owners,  share- 
holders or  stockholders  thereof,  as  the  parties  purchasing  water 
therefrom,  and  parties  taking  water  partly  under  and  by  virtue 
of  holding  shares,  and  partly  by  purchasing  the  same,  to  each 
his  share  pro  rata,  according  to  the  amount  he,  she  or  they  (in 
cases  in  which  several  consume  water  jointly)  shall  be  then  en- 
titled, so  that  all  owners  and  purchasers  shall  suffer  from  the 
deficiency  arising  from  the  cause  aforesaid  each  in  proportion 
to  the  amount  of  water  to  which  he,  she  or  they  should  have 
received  in  case  no  such  deficiency  of  water  had  occurred.    [G.  S., 
§1722;  L.  '79,  p.  97,  §4. 

3176.  •  Irrigation  of  meadows — Right  to  make  ditch — Priority. 
—Sec.  12.     All  persons  who  shall  have  enjoyed  the  use  of  the 
water  in  any  natural  stream  for  the  irrigation  of  any  meadow 
land,  by  the  natural  overflow  or  operation  of  the  water  of  such 
stream,  shall,  in  case  the  diminishing  of  the  water  supplied  by 
such  stream,  from  any  cause,  prevent  such  irrigation  therefrom 
in  as  ample  a  manner  as  formerly,  have  right  to  construct  a 
ditch  for  the  irrigation  of  such  meadow,  and  to  take  water  from 
such  stream  therefor,  and  his  or  their  right  to  water  through 
such  ditch  shall  have  the  same  priority  as  though  such  ditch 
had  been  constructed  at  the  time  he,  she  or  they  first  occupied 
and  used  such  land  as  meadow  ground.     [G.  S.,  §1723;  L.  '79, 
p.  106,  §37. 

3177.  Priority  of  right  to  seepage  or  spring  water. — Sec.  13. 
That  all  ditches  now  constructed  or  hereafter  to  be  constructed 
for  the  purpose  of  utilizing  the  waste,  seepage  or  spring  waters 
of  the  state,  shall  be  governed  by  the  same  laws  relating  to  prior- 
ity of  right  as  those  ditches  constructed  for  the  purpose  of  utiliz- 
ing  the  water  of  tunning  streams;   Provided,  That  the  person 
upon  whose  lands  the  seepage  or  spring  waters  first  arise,  shall 
have  the  prior  right  to  such  waters  if  capable  of  being  used  upon 
his  lands.     [L.  '89,  p.  215,  §1. 

[Right  to  water  hoisted  from  mine.     Section  4231.] 


10 

3178.  Water  appropriated  for  domestic  purposes  shall  not  be 
employed  for  irrigation. — Sec.  14.     Water  claimed  and  appropri- 
ated for  domestic  purposes  shall  not  be  employed  or  used  for 
irrigation  or  for  application  to  land  or  plants  in  an}*  manner 
to  any  extent  whatever;  Provided,  That  the  provisions  of  this 
section   shall  not   prohibit   any   citizen  or  town   or   corporation 
organized  solely  for  the  purpose  of  supplying  water  to  the  in- 
habitants to  such  city   or  town   from  supplying   water  thereto 
for  sprinkling  streets  and  extinguishing  fires  or  for  household 
purposes.     [L.  '91,  p.  402,  §1. 

3179.  Penalty   for   misapplication — Jurisdiction    of    justice.— 
Sec.  15.     Any  person  claiming  the  right  to  divert  water  for  do- 
mestic purposes  from   any  natural  stream  who  shall  apply  or 
knowingly  permit  the  water  so  diverted  to  be  applied  for  other 
than  domestic  purposes  to  the  injury  of  any  other  person  en- 
titled to  use  such  water  for  irrigation  shall  be  deemed  guilty  of 
a  misdemeanor  and  upon  conviction  shall  pay  a  fine  of  not  less 
than  fifty  dollars  and  not  exceeding  two  hundred  dollars  in  the 
discretion  of  the  court  wherein  conviction  is  had.     Each  day  of 
such  improper  application  of  water  obtained  in  the  manner  afore- 
said shall  be  deemed  a  separate  offense.     Justices  of  the  peace  in 
their  several  precincts  shall  have  jurisdiction  of  the  aforesaid 
offense  subject  to  the  right  of  appeal  as  in  cases  of  assault  and 
battery.     [L.  '91,  p.  403,   §2. 

[For  right  of  appeal  in  cases  of  assault  and  battery  see  section  3869.1 

3180.  Right  to  place  wheels  on  streams — Condition. — Sec.  IB. 
All  persons  on  the  margin,  brink,  neighborhood  or  precinct  of 
any  stream  of  water,  shall  have  the  right  and  power  to  place 
upon  the  bank  of  said  stream  a  wheel,  or  other  machine  for  the 
purpose  of  raising  water  to  the  level  required  for  the  purpose 
of  irrigation,  and  the  right  of  way  shall  not  be  refused  by  the 
owner  of  any  tract  of  land  upon  which  it  is  required,  subject  of 
course  to  the  like  regulations,  as  required  for  ditches,  and  laid 
down  in  sections  hereinbefore  enumerated.     [G.  S.,  §1727;  G.  L., 
§1377 ;  K.  S.,  p.  364,  §6. 

3181.  Map  of  ditch  or  reservoir  to  be  filed. — Sec.  17.     Every 
person,  association  or  corporation  hereafter  constructing  or  en 
larging  any  reservoir  or  reservoirs,  constructing,   changing  tho 
location  of,  or  enlarging  any  ditch,  canal,  or  feeder  for  any  ditch 
or  reservoir,  for  the  purpose  of  furnishing  a  supply  of  w^ater  for 
domestic,  irrigation,  power  or  storage,  or  for  any  other  beneficial 
use,  taking  water  from  any  natural  stream,  shall,  within  sixty 
days  after  the  commencement   of  such   construction,   change  of 
location  or  enlargement,  make  filings  in  the  office  of  the  State 
engineer  for  each  specific  claim,  in  such  form  as  shall  seem  suf- 


11 

ficieut  and  satisfactory  to  the  State  engineer,  and  accompanied 
by  the  proper  fees,  as  provided  by  statute,  two  duplicate  copies, 
on  tracing  muslin,  or  other  material  adapted  for  permanent  record 
and  preservation,  as  may  be  required  by  regulation  of  the  state 
engineer,  of  a  map,  made  with  permanent  ink,  showing  the  point 
of  location  of  the  headgate,  the  route  of  such  ditch  or  canal  or 
the  high-water  line  of  such  reservoir  or  reservoirs,  and  the  route 
of  the  feeder  or  feeders  to,  and  ditches  or  canals  from,  such  reser- 
voir or  reservoirs,  the  legal  subdivisions  of  the  land  upon  which 
such  structures  are  built  or  to  be  built,  if  on  surveyed  lands, 
the  names  of  the  owners  of  such  lands,  and  such  courses,  dis- 
tances and  corners  by  reference  to  legal  subdivisions,  if  on  sur- 
veyed lands,  or  to  natural  objects,  if  on  unsurveyed  lands,  as 
will  clearly  designate  the  location  of  such  structures.  [L.  '03, 
p.  28<),  §1. 

[For  fees  of  state  engineer  see  sections  3206,  3211  and  3332.] 

3182.  Statement    attached    to    map. — Sec.  18.     Upon  or  at- 
tached   to   such   maps   shall   be   duplicate  stratements,   showing 
in  the  case  of  any  ditch,  canal  or  feeder: 

First — The  point  of  location  of  the  head-gate  of  the  proposed 
structure. 

Second — The  depth,  width,  grade  and  length  of  each  ditch, 
canal  or  feeder  proposed. 

Third — The  carrying  capacity  of  each  ditch,  canal  or  feeder 
in  cubic  feet  per  second. 

Fourth — The  time  of  commencement  of  work  on  such  struc- 
tures, which  time  may  be  the  date  of  the  commencement  of  the 
surveys  therefor,  or  of  the  commencement  of  actual  construction. 

Fifth — The  estimated  cost  of  the  proposed  project.   • 

In  cases  when  filings  are  made  upon  reservoir  sites  the  stae- 
ments  shall  show  the  height  of  the  proposed  dam,  the  estimated 
cost,  with  the  capacity  in  cubic  feet  and  the  surface  area  for  each 
foot  in  depth  of  water  stored  up  to  and  including  the  high-water 
mark.  [L.  '08,  p.  290,  §2. 

[Cubic  inch  of  water  denned.     Section  7026.] 

3183.  Statement  in  case  of  enlargement — Temporary  map.— 
Sec.  10.     In  case  of  change,  enlargement  or  extension,  such  state- 
ments shall  show  the  matters  required  above,  referring  to  the 
structures  before   such   change  or  enlargement,   and   shall  then 
state,  also,  the  information  required  in  the  above  items  second, 
third  and  fourth  and  fifth,  referring  to  the  structure  as  enlarged, 
and   in   addition   thereto,   shall   state   definitely   the   increase   in 
capacity  to  be  added  to  the  original  capacity  by  virtue  of  such 
enlargement.     Whenever,  through  the  necessity  for  extended  sur- 
veys requiring  long  periods  of  time,  it  shall  be  impracticable  for 
the  claimant  or  claimants  to  file  a  complete  map  and  statement 


12 

within  sixty  days,  as  required  above,  a  map  and  statement  as 
complete  as  may  be  practicable  shall  be  filed,  with  a  further 
statement  that  a  complete  map  and  statement  will  be  filed  later, 
and  upon  the  completion  of  such  survey  a  full  and  detailed  map 
and  statement,  amending  the  ones  first  filed,  shall  be  offered  for 
examination  and  acceptance  in  the  same  manner  as  herein  provid- 
ed for  the  original  filing.  [L.  '03,  p.  290,  §3. 

3184.  Statements   must    be    signed    and    sworn    to. — Sec.  20. 
Such   statements  shall  be  signed  by  the  person   or  persons  in 
whose  behalf  they  are  made,  or,  in  cases  where  an  associatioa 
or  a  corporation  are  the  parties  interested,  the  signature  shall 
be  the  legal  title  of  such  association  or  corporation,  signed  by 
some  duly  authorized  agent  or  officer,  who  shall  also  sign  his  own 
name,  giving  his  official  title,  and  the  truth  of  the  matter  shown 
in  such  maps  and  statements  shall  also  be  sworn  to  by  the  engi- 
neer in  charge,  or  person  making  the  survey,  before  some  officer 
legally   qualified   for  the   administration   of  oaths.     [L.   '03,   p, 
291,  §4. 

3185.  State  engineer  examine  maps  and  statements — Return 
duplicate — Duplicate  filed  with  recorder. — Sec.  21.     The  state  engi- 
neer shall  examine  the  duplicate  maps  and  statements,  and   if 
he  shall  find  the  data  therein  contained  to  be  sufficient  and  satis- 
factory for  a  clear  presentation  of  facts  concerning  the  claims 
made,  he  shall  file  one  of  the  maps  and  statements  in  his  office, 
and  shall  return  the  duplicate  map  and  statement  to  the  claim- 
ant with  a  certificate,   stating  that  it  has  been  examined  and 
approved  by  him,  and  that  it  is  a  duplicate  of  the  copy  filed  in 
his  official  records,  and  this  duplicate  copy  shall,  within  ninety 
days  .from  the  time  stated  as  the  date  of  commencement,  be  filed 
by  the  claimant  in  the  office  of  the  county  clerk  and  recorder  in 
which  the  headgate  of  the  proposed  structure,  or  in  which  the 
proposed  reservoir  shall  lie.     [L.  '03,  p.  291,  §5. 

3186.  Certified  copy  evidence — Diligent  construction. — Sec.  -'1. 
A  certified  copy  of  the  map  and  statement  thus  filed  in  the  state 
engineer's  office  shall  be  prima  facie  evidence  in  any  court  having 
jurisdiction   of  the    intent    of    the    claimant    or    claimants    to 
make  such  construction  and  to  utilize  such  rights  as  are  shown 
and  described  in  the  map  and  statement ;  Provided,  That  nothing 
herein  contained  shall  be  so  construed  as  to  dispense  with  the 
necessity  for  due  diligence  in  the  construction  of  such  projects, 
or  to  the  injury  of  those  having  rights  prior  to  those  of  the 
claimants;   And,   provided,   further.   That   nothing   herein    con- 
tained shall  be  so  construed  as  to  prevent  proper  adjudication 
of  rights  in   accordance  with  existing  statutes  governing  sucR 

.adjudication.     [L.  '03,  p.  291,  §6. 


13 

3187.  Compliance  with  former  act. — Sec.  23.     All  plats  and 
statements  or  other  documents  heretofore  filed  or  recorded  in 
substantial   compliance  with  the  provisions  or  requirements  of 
section  2  of  an  act  entitled,  "An  act  to  provide  for  the  extension 
of  the  right  of  way  for  ditches,  canals  and  feeders  of  reservoirs 
in  certain  cases,  and  requiring  registration  of  all  such  hereafter 
made  or  enlarged,"  approved  February  11,  1881,  shall  be  taken, 
deemed  and  held  to  constitute  a  compliance  with  the  provisions 
of  this  act.     [L.  '03,  p.  292,  §G. 

[Section  2  of  the  act  above  referred  to  was  held  unconstitutional  in  L,amar 
Co.  v.  Amity  Co.,  26  Colo.,  370.  The  provisions  of  that  section  were  re-enacted 
by  L.  '87,  p.  315,  which  act  was  superseded  by  sections  3181-3187.] 

DRAINAGE. 

3188.  Petition  to  establish  or  enlarge  drain. — Sec.  24.     When- 
ever any  person,  company  or  corporation  desires  the  construc- 
tion, enlargement  or  extension  of  a  ditch,  drain  or  water  course 
for  the  purpose  of  draining  and  reclaiming  seeped   or  marshy 
land,  they  shall  file  with  the  board  of  county  commissioners  of 
the  county  or  counties  in  which  such  improvement  or  improve- 
ments are  to  be  located,  a  petition  signed  by  one  or  more  of  the 
land  owners  who  own  or  represent  the  major  portion  of  the  land 
which  would  be  affected  by  the  proposed  improvement.     [L.  '03, 
p.  209,  §1. 

3189.  Contents    of    petition — Plat. — Sec.   25.     Said   petition 
shall  set  forth  the  necessity  for  and  probable  benefits  of  such 
ditch,  drain  or  water  course,  together  with  a  list  of  the  lands 
affected  by  the  proposed  improvement,  and  whether  such  lands 
so  affected  are  in  one  or  more  counties,  and  therein  naming  the 
county  or  counties  where  such  land  is  located,  or  through  which 
said  improvement  may  pass,  and  the  names  and  addresses  of  the 
owners  of  such  lands,  and  there  shall  be  attached  to  said  petition 
a  plat  showing  approximately  the  location,  direction,  size  and 
length  of  said  drain,  ditch  or  water  course.     [L.  '03,  p.  210,  §2. 

3190.  Bond  of  petitioner. — Sec.  26.     The  petitioner  or  peti- 
tioners shall  give  a  good  and  sufficient  bond,  payable  to  the  coun- 
ty or  counties  and  approved  by  the  county  clerk,  conditioned,  in 
cas<»  said  drain,  ditch  or  water  course  from  any  cause-  whatso- 
ever is  not   constructed,  to  pay   all   expenses   incurred   by   the 
county  or  counties  on  account  of  said  proposed  improvements. 
[L.  '03,  p.  210,  §3. 

3191.  Board   of  viewers — Duties — Hearing — Notice. — Sec.  27. 
When  such  petition  plat  and  bonds  are  filed  the  board  of  county 
commissioners  of  each  county  where  such  improvement  is  to  be 
made  shall  appoint  a  board  of  viewers  consisting  of  three  disin- 
terested persons,  residents  of  the  county  where  the  improvement 


14 

is  to  be,  who  in  turn  shall  select  a  competent  engineer  to  assist 
them,  and  in  the  event  that  such  improvement  extends  into  more 
than  one  county  when  the  board  of  commissioners  of  each  coun- 
ty where  such  improvement  is  to  be  made  shall  take  a  like  action, 
and  the  same  procedure  shall  be  necessary  of  each  county  or 
board  of  county  commissioners  and  of  all  petitioners  or  parties 
interested  as  would  be  necessary  if  the  entire  improvement  were 
to  be  made  in  one  county  only.  The  board  of  viewers  of  each 
county  wherein  such  improvement  is  to  be  made  shall  then  pro- 
ceed at  once  to  view  the  line  of  the  proposed  appointed  drain  and 
the  lands  affected  thereby  lying  within  the  county  for  which  they 
were  appointed,  and  shall  cause  the  engineer  to  prepare  accurate 
surveys  and  estimates  of  the  proposed  work  on  the  land  lying 
within  the  county  for  which  the}'  were  appointed,  and  shall  set 
a  day  and  place  for  hearing  the  views  of  all  interested  parties, 
receive  protests,  information,  and  any  matter  in  relation  to  the 
proposed  improvements ;  and  the  board  of  viewers  shall  notify  all 
the  resident  land  holders  of  their  county  affected  by  such  im- 
provement by  personal  service  tw.enty  days  prior  to  the  date  of 
such  meeting  and  personal  service  of  said  notice  can  not  be  had, 
or  if  any  of  said  land  holders  are  non-residents,  then  said  notice 
shall  be  sent  through  the  mail ;  and  shall  also  cause  to  be  pub- 
lished a  copy  of  said  notice  in  some  weekly  newspaper  in  said 
county  for  a  period  of  not  less  than  four  weeks  prior  to  said 
meeting.  [L.  '03,  p.  210,  §4. 

3192.  Hearing — Evidence — Report — When  joint  hearing.— 
Sec.  28.  All  persons  whose  lands  may  be  affected  may  appear 
at  the  time  specified  for  the  said  meeting  before  said  board  of 
viewers  and  present  such  testimony  and  affidavits  as  shall  re- 
late to  the  proposed  drainage  system,  with  such  recommendations 
and  objections  as  shall  to  them  seem  pertinent  and  necessary. 
If  the  proposed  improvement  extends  into  more  than  one  county 
then  the  viewers  appointed  by  each  board  of  county  commission- 
ers of  the  county  wherein  a  part  of  such  improvement  is  to  be 
made,  shall  meet  at  some  point  agreed  upon  by  the  different 
boards  of  viewers  of  the  different  counties  and  there  prepare  a 
joint  report  upon  all  matters  and  things  required  of  a  board 
of  viewers  where  the  improvement  is  in  a  single  county,  and  shall 
then  forward  to  each  board  of  county  commissioners  of  each 
county  for  which  they  are  appointed  a  copy  of  said  joint  report, 
but  this  shall  not  be  construed  so  as  to  require  the  persons  whose 
lands  are  affected  thereby  by  this  section  to  appear  before  said 
board  when  acting  jointly  unless  it  would  be  more  convenient 
for  hearing  provided  for  by  this  section  to  be  a  joint  one  by  the 
different  reviewing  boards  of  the  different  counties.  [L.  '03.  p. 
211,  §5. 


15 

3193.  When  improvement  not  feasible. — Sec.  29.     If  the  view- 
ers shall   find  that  the   proposed   improvement   is  not   feasible, 
they  shall  so  report  to  the  board  of  county  commissioners,  and 
the  costs  and  expenses  incurred  shall  be  paid  by  the  original  pe- 
titioners, as  provided  under  their  bond.     [L.  '03,  p.  212,  §6. 

3194.  When    feasible— Report— Appeal.— Sec.    30.     If,    how- 
ever, the  improvements  shall  be  found  feasible  and  of  use  and 
benefit  and  to  be  desired  by  owners  representing  a  major  part  of 
the  lands  affected,  the  board  of  viewers  shall  so  report  to  the 
board  of  county  commissioners,  and  shall  include  in  their  report 
a  detailed  recommendation  of  the  method  to  be  pursued  in  prose- 
cuting the  work,  and  shall  submit  plans  and  specifications  for 
the  letting  of  contracts  and  fix  and  recommend  the  proportionate 
assessment  for  each  tract  of  land  affected,  which  assessment  shall 
b£  proportionate  to  the  benefits  accruing  to  each  of  such  tracts ; 
Provided,  however,  That  any  person  interested  therein  who  shall 
feel  aggrieved  at  the  report  and  finding  of  the  board  of  county 
commissioners   shall   have  the   right   of  appeal   to   the    district 
court  of  said  county  and  have  such  matters  passed  upon  by  a 
jury.     [L.  '03,  p.  212,   §7. 

3195.  Allotment    of    work — Bond. — SIM-.    :U.     The    board    of 
viewers  may,  by  agreement  of  the  land  owners,  recommend  the 
allotment  to  each  of  a  portion  of  the    improvement;    Provided, 
however,  That  each  said  owner  shall  give  a  good  and  sufficient 
bond  for  the  proper  performance  of  his  proportion  of  the  work 
so  alloted.     [L.  '03,  p.  212,  §8. 

3196.  When  work  let  by  contract — Advertise  for  bids — Bond. 
—Sec.  32.     In  case  no  such  allotment  or  division  of  the  work 
is  made,  or  in  case  all  of  it  shall  not  be  so  allotted,  the  county 
commissioners  shall  cause  an  advertisement  to  be  inserted  in  a 
daily  or  weekly  paper  of  general  circulation  in  the  vicinity  for 
a  period  of  thirty  days.     Said  advertisement  shall  be  a  notice 
to  the  land  owners  of  the  work  proposed  and  shall  call  for  bids 
on  the  work,   in  accordance  with  the  recommendations  of  the 
board  of  viewers,  and  the  contract  shall  be  let  to  the  lowest  re- 
sponsible bidder  for  the  entire  work  lying  within  their  respective 
counties,  or  to  the  lowest  responsible  bidders  on  each  of  the  sev- 
eral portions  of  the  work.     The  successful  bidder  or  bidders  shall 
file  a  good  and  sufficient  bond  with  the  board  of  county  commis- 
sioners for  the  faithful  performance  of  their  contract.     [L.  '03,  p. 
212,  §9. 

[For   appeals   from   disallowance   of   claims   by   commissioners   see    section 
1225.] 

3197.  Completion — Expense  pro   rated — County  treasurer  col- 
lect.— Sec.  33.     When  the  work  shall  have  been  completed  and 
accepted  by  the  engineer  in  charge,  the   county   commissioners 


16 

shall  determine  the  total  cost,  damages  and  other  expenses,  and 
divide  the  same  among  the  several  tracts  of  land  affected,  in  their 
respective  counties,  in  the  proportion  determined  by  the  board 
of  viewers,  and  shall  certify  to  the  county  assessor  or  assessors 
if  in  more  than  one  county,  a  list  of  the  lands  affected,  the  total 
amounts  to  be  assessed  against  each,  with  all  credits  for  work 
or  damages  due  the  owner  of  each  tract,  with  the  net  assess- 
ment of  each,  and  the  assessor  or  assessors  if  in  more  than  one 
county  shall  enter  the  said  net  assessment  against  each  of  the 
several  tracts  of  land  lying  within  his  county  in  the  same  man- 
ner as  for  other  taxes,  and  the  county  treasurer  of  each  county 
where  such  improvement  or  part  thereof  is  to  be  made,  shall 
-  collect  the  same  and  reimburse  the  county  for  all  moneys  ex- 
pended or  expenses  incurred  subject  to  the  right  of  appeal  to 
the  district  court  as  to  matters  herein  as  in  cases  of  appeal  from 
disallowance  of  claims  by  board  of  county  commissioners.  [L. 
'03,  p.  213,  §10. 

3198.  Acceptance — Vouchers. — Sec.  34.     Upon  the  proper  ac- 
ceptance by  the  engineer  or  engineers  if  such  improvement  is  in 
more  than   one  county  the  board  of  county   commissioners   of 
each  county  where  such  improvement  is  located,  shall  c^u«e  a 
voucher  to  be  drawn  upon  the  county  treasurer  for  the  amounts 
due  on  contracts,  for  damages  and  other  expenses.     [L.  ?03,  p. 
213,  §11. 

3199.  Compensation  of  engineers  and  viewers. — Sec.  35.     Each 
ef  the  members  of  the  board  of  viewers  shall  receive  their  neces- 
sary expenses  and  three  dollars  per  day  for  services,  and  the  en- 
gineers shall  receive  their  necessary  expenses  and  six  dollars  per 
day  for  each  day  necessarily  employed.     [L.  ?03,  p.  2.13,  §12. 

3200.  Right  of  eminent  domain.— Sec.  36.     The  right  of  emi- 
nent domain  shall  extend  to  all  improvements  constructed  under 
this  act.     [L.  '03,  p.  213,  §13. 

[See  Chapter  45.     Eminent  Domain.] 

RESERVOIRS. 

3201.  Disposition    of    water    drained. — Sec.  37.     All  waters 
gathered  by  such  drainage  improvement  shall  be  the  property 
of  those  from  whose  lands  the  same  is  taken  by  such  drainage 
canal,  and  the  same  shall  be  pro  rated  among  the  different  land 
holders  from  which  such  water  is  taken  according  to  the  <  ost  of 
the  improvement  assessed  against  each  one.     [L.  '03,  p.  213,  §14. 

3202.  Reservoirs — Right  to  water — Right  of  way — Condemna- 
tion— Embankments  over  ten  feet  submit  to  county  board. — Sec.  38. 
Persons  desirous  to  construct  and  maintain  reservoirs,   for   the 
purpose  of  storing  water,  shall  have  the  right  to  take  from  any 


17 

of  the  natural  streams  of  the  state  and  store  away  any  .unappro- 
priated water  not  needed  for  immediate  use  for  domestic  or  irri- 
gating purposes;  to  construct  and  maintain  ditches  for  carrying 
such  water  to  and  from  such  reservoir,  and  to  condemn  lands 
for  such  reservoirs  and  ditches  in  the  same  manner  provided  by 
law  for  the  condemnation  of  lands  for  right  of  way  for  ditches; 
Provided,  Xo  reservoir  with  embankments  or  a  dam  exceeding 
ten  feet  in  height  shall  be  made  without  first  submitting  the  plans 
thereof  to  the  county  commissioners  of  the  county  in  which  it  is 
situated,  and  obtaining  their  approval  of  such  plans.  [G.  S., 
§1724;  L.  '79,  p.  106,  §38. 

[Is  the  above  section  superseded  by  section  3205?] 

3203.  Conducting  water  in  natural  streams — Taking  out — Al- 
lowance for  seepage — How  determined. — Sec.  39.     The  owners  of 
any  reservoir  may  conduct  the  water  therefrom  into  and  along 
any  of  the  natural  streams  of  the  state,  but  not  so  as  to  raise 
the  waters  thereof  above  ordinary  high  water  mark,  and  may  take 
the  same  out  again  at  any  point  desired,  without  regard  to  the 
prior  rights  of  others  to  water  from  said  stream;  but  due  allow- 
ance shall  be  made  for  evaporation  and  seepage,  the  amount  to 
be  determined  by  the  commissioners  of  irrigation  of  the  district; 
or,  if  there  are  no  such  commissioners,  then  by  the  county  com- 
missioners-of  the  county  in  which  the  water  shall  be  taken  out 
for  use.     [G.  S.,  §1725  ;*L.  79,  p.  107,  §39. 

[See  also  section  3225.]  ! 

3204.  Liability  of  owners  for  damage. — Sec.  40.     The  owners 
of  the  reservoirs  shall  be  liable  for  all  damages  arising  from 
leakage  or  overflow  of  the  waters  therefrom  or  by  floods  caused 
by  breaking  of  the    embankments    of    such    reservoirs.     [G.  S., 
§1720;  L.  '79,  p.  1(17,  §40. 

3205.  Construction  ^ of  reservoirs — State  engineer  supervise.— 
Sec.  41.     No  reservoir  of  a  capacity  of  more  than  seventy-five 
millions  cubic  feet  of  water,  or  having  a  dam  or  embankment  in 
excess  of  ten  feet  in  vertical   height,  and  covering  an  area  of 
more  than  20  acres  shall  hereafter  be  constructed  in  this  state, 
except  the  plans  and  specifications  of  the  same  shall"  first  be  ap- 
proved by  the  state  engineer ;  and  the  state  engineer  shall  act  as 
consulting  engineer  during  the  construction  thereof,  and  shall 
have  authority  to  require  the  material  used  and  the  wrork  of  con- 
struction to  be  done  to  his  satisfaction;  and  no  w^ork  shall  be 
deemed  complete  under  the  provisions  of  this  act  until  the  state 
engineer  shall  give  to  the  owners  of  such  structures  a  written 
statement  of  the  work  of  construction  and  the  full  .completion 
thereof  together  with  his  acceptance  of  the  same,  which  state- 
ment shall  specify  the  dimensions  and  capacity  of  such  reser- 
voir or  reservoirs.     [L.  '99,  p.  314,  §1. 


18 

3206.  Cost  of  inspection  and  supervision  paid  by  owner. — Sec. 

42.  The  owners  of  such  reservoirs  shall  pay  to  said  state  en- 
gineer his  actual  expenses  incurred  in  making  personal   inspec- 
tion, and  five  dollars  per  day  and  expenses  to  any  deputy  ap- 
pointed by  him  to  attend  to  such  supervision  when  necessarily 
employed  for  such  purpose.     [L.  '99,  p.  314,  §2. 

3207.  Engineer  determine  amount  of  water  to  be  stored. — Sec. 

43.  The  state  engineer  shall  annually  determine  the  amount  of 
water  which  it  is  safe  to  impound  in  the  several  reservoirs  within 
this  state  and  it  shall  be  unlawful  for  the  owners  of  any  reser- 
voir to  store  in  said  reservoir  water  in  excess  of  the  amount  so 
determined  by  the  state  engineer  to  be  safe.     [L.  '99,  p.  315,  §3. 

3208.  Water  commissioner  withdraw  excess  water — Close  in- 
lets.— Sec.  44.     In  the  event  of  the  owners  of  any  such  reservoir 
impounding  water  therein  to  a  depth    greater    than    that    de- 
termined by  the  state  engineer  to  be  safe,  it  shall  be  the  duty  of 
the  water  commissioner  of  the   district  wherein  such   reservoir 
shall  be  located,  to  forthwith  proceed  to  withdraw  from   said 
reservoir  so  much  of  the  water  so  impounded  therein  as  shall  be 
in  excess  of  the  amount  so  determined  by  the  state  engineer  to 
be  safe,  and  shall  close  the  inlets  to  the  same  so  as  to  prevent 
said  reservoir  from  being  refilled  to  an   amount  beyond   what 
said  state  engineer  shall  have  designated  as  being  safe.     In  the 
event  of  the  owners  of  said  reservoir,  or  any   other  person  or 
persons,  interfering  with  the  water  commissioner    in    the    dis 
charge  of  said  duty,  the  said  water  commissioner  .shall  call  to  his 
aid  such  persons  as  he  deems  necessary,  and  employ  such  force 
as  the  circumstances  demand  to  enable  him  to  comply  with  the 
requirements  of  this  section.     [L.  '99,  p.  315,  §4. 

3209.  Complaint  that  reservoir  is  unsafe — Duty  of  engineer. 
—Sec.  45.     Upon  complaint  being  made  to  the  state  engineer  by 
three  or  more  persons  residing  or  having  property  in  such  a  loca- 
tion that  their  homes  or  property  would  be  in  danger  of  destruc- 
tion or  damage  in  the  event  of  a  flood  occurring  on  account  of  the 
breaking  of  the  embankment  of  any  reservoir  within  the  state, 
that  said  reservoir  is  in  an  unsafe  condition,  or  that  it  is  being 
filled  writh  water  to  such  an  extent  as  to  render  it  unsafe,  it 
shall  be  the  duty  of  the  state  engineer  to  forthwith  examine  said 
reservoir  and  determine  the  amount  of  water  it  is  safe  to  im- 
pound therein.      If  upon  such  examination,  the  state  engineer 
shall  find  that  said  reservoir  is  unsafe,  or  is  being  filled  with 
water  to  such  an  extent  as  to  render  it  unsafe,  it  shall  be  his 
duty  to  immediately  cause  said  water  to  be  drawn  off  from  said 
reservoir,  to  such  an  extent  as  will,  in  his  judgment,  render  the 


19 

same  safe.     If  water  is  then  flowing  into  said  reservoir,  he  shall 
cause  the  same  to  be  discontinued:     [L.  '99,  p.  315,  §5. 

3210.  Engineer  may  use  force — Violation  of  engineer's  order. 
— Sec.  4(5.     The  state  engineer  is    hereby    authorized    and    em 

I  lowered  to  use  such  force  as  is  necessary  to  perform  the  duties 
required  of  him  in  the  preceding  section,  and  to  have  and  exer- 
cise all  of  the  powers  conferred  upon  the  water  commissioner 
by  section  4  of  this  a<-t.  If,  after  any  of  such  reservoirs  shall 
have  been  examined  by  said  state  engineer,  the  owners  thereof, 
or  any  other  person  or  persons,  shall  fill  or  attempt  to  fill  them,  ' 
or  either  of  them  to  a  point  in  excess  of  the  amount  the  state 
engineer  shall  have  determined  to  be  safe,  then  it  shall  be  the 
duty  of  the  water  commissioner  of  the  district  wherein  such  res- 
ervoir is  located  to  proceed  as  is  directed  by  section  4  of  this  act. 
[L.  '!>!),  p.  3i(>,  $<;. 

[Section  4  above  referred  to  is  section  3208.] 

3211.  Expense  of  examination — By  whom  paid. — Sec.  47.    The 
persons  calling   upon   the   state   engineer   to   perform   the  duty 
required  of  him  by  section  .">  hereof  shall  pay  him  mileage  in  ad- 
vance at  the  rate  of  ten  cents  per  mile  for  each  mile  actually 
and   necessarily  traveled   in   going  to  and  from   said   reservoir, 
and  should  the  state  engineer  find  upon  examination  that  such 
reservoir  is  in  an  unsafe  condition,  the  owners  thereof  shall  be 
liable  for  all  expenses  incurred  in  such  examination.     [L.   '99, 
p.  31(5,  §7. 

[Section  5  above  referred  to  is  section  3209.] 

3212.  Appeal    from    decision    of    engineer. — Sec.  48.     In  the 
event  of  either  party  being  Dissatisfied  with  the  decision  of  the 
state  engineer,  they  may  take  an  appeal  to  the  county,  or  dis- 
trict court  of  the  county  wherein  said  reservoir  is  located,  and 
said  court  shall  hear  and  determine  the  matter  summarily  at  the 
earliest  practical  time  without  written  pleadings  or  the  aid  of  a 
jury;  subject  to  the  right  of  either  party  to  take  an  appeal  or 
writ  of  error  as  in  other  civil  cases;  Provided.,  That  the  judg- 
ment of  the  state  engineer  shall  control   until  final  determina- 
tion of  the  cause.     [L.  '99,  p.  316,  §8. 

3213.  Owners  liable  for  damages  in  case  of  breakage  of  reser- 
voir.— Sec.  49.     None  of  the  provisions  of  this  act  shall  be  con- 
strued as  relieving  the  owners  of  any  such  reservoir  from  the 
payment  of  such  damages  as  may  be  caused  by  the  breaking  of 
the  embankments  thereof,  but  in  the  event  of  any  such  reservoir 
overflowing,  or  the  embankments,  dams  or  outlets  breaking  or 
washing  out,  the  owners  thereof  shall  be  liable  for  all  damage 
occasioned  thereby.     [L.  '99,  p.  310,  §9. 


3214.  Violation   of   act — Penalty — Disposition   of   fines. — See. 
50.     Any  reservoir  company  failing  or  refusing,  after  ten  days' 
notice  in  writing  having  been  given,  to  obey  the  directions  of  the 
state  engineer  as  to  the  construction  or  filling  of  any  reservoir 
as  herein  provided,  shall  be  subject  to  a  fine  of  not  less  than  fifty 
dollars,  for  each  offense,  and  each  day's  continuance  after  time 
of  notice  has  expired   shall   be  considered   a   separate   offense; 
such  fines  to  be  recovered  by  civil  action   in  the  name  of  the 
people,  by  the  district  attorney,  upon  the  complaint  of  the  state 
engineer,  and  in  the  county  where  the  injury  complained  of  oc- 
curred, the  proceeds  of   all   fines,   after  payment  of  costs   and 
charges  of  the  proceedings,  shall  be  paid  into  the  county  treasury 
for  the  use  -of  the  general  fund  of  the  county.     [L.  '99,  p.  317, 
§10. 

3215.  Survey  of  reservoir  site  on  arid  land.— Sec.  51.     It  shall 
be  the  duty  of  the  county  surveyor  of  each  county  within  this 
state  upon  the  request  of  the  owner  of  ten  or  more  acres  of  arid 
land  lying  in  such  county,  to  locate  and  survey  an  available  site 
for  a  reservoir  upon  such  land,  such  reservoir  to  be  used  for  the 
storage  of  water  to  irrigate  the  land  contiguous  thereto  and  such 
reservoir  to  be  of  a  capacity  to  hold  sufficient  water  to  properlv 
irrigate  not  less  than  ten  acres  of  such  land.     [L.  '03,  p.  262,  §1. 

3216.  Construction   of  reservoir — County   surveyor   supervise. 
— Sec.  52.     Within  thirty  (30)  days  after  such  location  and  sur- 
vey by  the  county  surveyor,  the  owner  of  such  land  shall  begin 
the  construction  of  such  reservoir  and  shall  work  continuously 
thereon  until  the  completion  thereof  and  all  of  such  wrork  of  con- 
struction and  the  construction  of  such  dam  or  dams  as  may  be 
necessary,  and  the  construction  of*  the  outlet  to  such  reservoir 
shall  be  done  under  the  direction  and  supervision  of  such  county 
surveyor.     [L.  '03,  p.  262,  §2. 

3217.  Completion — Flat  filed — Contents. — Sec.  53.     Upon  the 
completion  of  the  reservoir  it  shall  be  the  duty  of  the  county 
surveyor  to  file  with  the  board  of  county  commissioners  of  such 
county,  a  map  or  plat  of  the  land  upon  which  such  reservoir 
is  located;  describing  such  land  by  legal  subdivisions  and  show- 
ing thereon  the  name  of  the  owner,  the  number  of  acres  of  arid 
land  contiguous  to  such  reservoir  claimed  by  such  owner;  the 
size  or  water  capacity  in  cubic  feet  of  such  reservoir;  the  num 
ber  of  acres  of  land  capable  of  being  irrigated  by  such  reservoir ; 
the  source  and  means  of  supplying  such  reservoir  with  water, 
and  indicating  the  point  of  location  upon  the  land  of  such  reser- 
voir.    [L.  '03,  p*  263,  §3. 

3218.  Approval  of  plat— Duty  of  owner.— Sec.  54.     It  shall  be 
the  duty  of  such  board  of  county  commissioners  to,  within  sixty 


21 

(60)  days  after  the  filing  of  such  map  or  plat,  to  approve  the 
same  by  resolution  spread  upon  the  records  of  such  board.  That 
it  shall  be  the  duty  of  such  owner  or  his  tenant,  to  use  such  reser- 
voir and  keep  the  same  in  good  repair  and  in  a  safe  condition. 
[L.  '03,  p.  203,  §4. 

3219.  Inspection — Notice  to   owner — Failure  .to  repair. — Sec. 

55.  It  shall  be  the  duty   of  the  county   surveyor  to  annually 
inspect  each  reservoir  within  his  county  so  constructed  under 
the  provisions  of  this  act,  and  he  shall  file  with  the  board  of 
county  commissioners  a  report  in  writing  showing  the  condition 
of  such  reservoir  and  a  statement  as  to  whether  or  not  such 
reservoir  was  being  used  during  the  year  of  such  inspection  for 
the  purposes  contemplated  by  this  act;  and  should  he  find  any 
such  reservoir,  or  dam  or  outlet  thereof,  in  an  unsafe  and  dan- 
gerous  condition   he   shall    in   writing   so   notify   the   owner   or 
tenant  thereof  as  provided  in  section  three  hereof;  and  should 
such  owner  or  his  tenant  fail   or  refuse  within  the  aforesaid 
period  of  thirty  (30)  days  to  place  such  reservoir,  dam  and  outlet 
in  a  safe  and  proper  condition,  then  and  in  that  event  it  shall  be 
the  duty  of  the  said  county  survey/)!'  to  immediately  let  out  and 
release  under  his  direct  supervision  any  and  all  waters  that  may 
Jiave  accumulated  in  such   reservoir;  and  the   said  county  sur- 
veyor shall  within  ten   (10)   days  thereafter  file  with  the  board 
of  county  commissioners  a  report  in  writing  of  his  acts  in  the 
premises.     [L.  '03,  p.  263,  §5. 

[Section  3  above  referred  to  is  section  3217.] 

3220.  Compensation  of  county  surveyor — By  whom  paid. — Sec. 

56.  The  county  surveyor  shall  be  paid  for  his  services  at  the 
time  of  making  such  survey  and  location,  the  sum  of  ten   (10) 
dollars  and  all  the  necessary  traveling  expenses,  and  upon  the 
completion  of  such  reservoir  and  the  filing  of  the  map  or  plat 
specified  in  section  3  hereof  he  shall  be  paid  the  further  sum 
of  five  (5)   dollars  and  all  necessary  traveling  expenses  and  su- 
perintending the  construction  of  such  reservoir,  dam  and  outlet, 
and  such  payments   and  traveling  expenses  shall  be  borne  by 
said  owner  or  tenant  of  such  reservoir  and  land;  and  for  an- 
nually inspecting  and  filing  his  report  of  the  condition  of  such 
reservoir  within  his  county  as  specified  in  section  4  hereof,  the 
county  surveyor  shall  be  paid  the  sum  of  five    (5)    dollars  for 
each  of  such  reservoirs  so  inspected  and  so  reported  upon,  out 
of  the  general  fund  of  such  county.     [L.  '03,  p.  264,  §6. 

[Sections  3  and  4  above  referred  to  are  sections  3217  and  3218.] 

3221.  Damages. — Sec.  57.     County  surveyors  and  members 
of  boards  of  county  commissioners  within  this  state  shall  not 
be  liable  in  damages  for  any  act  done  by  them  in  pursuance  of 
the  provisions  of  this  act.     [L.  '03,  p.  264,  §7. 


22 

3222.  Exchange  of  water,  less  seepage. — Sec.  58.     That  when- 
ever any  person  or  company  shall  divert  water  from  one  public- 
stream  and  turn  it  into  another  public  stream,  such  person  or 
company  may  take  out  the  same  amount  of  water  again,   less 
a  reasonable  deduction  for  seepage  and  evaporation,  to  be  de- 
termined by  the  state  engineer.     [L.  '1)7,  p.  176,  §1. 

[See  also  section  3232.] 

3223.  Must    maintain    flumes    and    register    water. — Sec.  59. 
Any   person   or   company    transferring   water   from    one   public 
stream  to  another  shall  be  required  to  construct  and  maintain 
under  the  direction  of  the  state  engineer  measuring  flumes  or 
weirs  and  self-registering  devices  at  the  point  where  the  watev 
leaves  its  natural  watershed  and  is  turned  into  another,  and  also 
at  the  point  where  it  is  finally  diverted  for  use  from  the  public 
stream.     [L.  '97,  p.  176,  §2. 

[See  also  section  3249.] 
[Failure  to   maintain  3249.] 

3224.  Water  commissioner  keep  record. — Sec.  60.     It  shall  be 
the  duty   of   the   water   commissioner   of   the   district   in   which 
the  water  is  used  to  keep  a  record  of  the  amount  of  water  so 
turned  into  his  district  from  any  other  district.     [L.  ?97,  p.  176, 

§O 
o. 

3225.  Reservoirs  and  ditches  may  exchange, — Sec.  61.     When 
the  rights  of  others  are  not  injured  thereby,  it  shall  be  lawful 
for  the  owner  of  a  reservoir  to  deliver  stored  water  into  a  ditch 
entitled  to  water  or  into  the  public  stream  to  supply  appropria- 
tions from  said  stream,  and  take  in  exchange  therefor  from  the 
public  stream  higher  up  an  equal  amount  of  water,  less  a  reason- 
able" deduction  for  loss,  if  any  there  be,  to  be  determined  by  the 
state  engineer;  Provided,  That  the  person  or  company  desiring 
such  exchange  shall  be  required  to  construct  and  maintain  under 
the  direction  of  the  state  engineer  measuring  flumes  or  weirs 
and  self-registering  devices  at  the   point  where    the    water    is 
turned  into  the  stream  or  ditch  taking  the  same  or  as  near  such 
point   as   is   practicable   so   that   the   water   commissioner   may 
readily  determine  and  secure  the  just  and  equitable  change  of 
water  as  herein  provided.     [L.  '97,  p.  177,  §4. 

[See  also  section  3202.] 

3226.  Changing  point  of  diversion — Petition — Practice  and  pro- 
cedure.— Sec.  62.     Every  person,  association  or  corporation  de- 
sirous of  changing  in  whole  or  in  part  the  point  or  points  of 
diversion  of  his  or  its  right  to  use  water  from  any  of  the  streams 
of  the  state,  shall  present  a  petition  to  the  district  court  ""from 
which  the  original  decree  issued,  whether  the  change   be  from 
one  district  to  another   or  not;   praying  that  such   change  be 
granted.     The  practice  and  procedure  upon  all  petitions,  save  as 


herein  provided,  shall  be  the  same  as  if  the  petition  were  for  an 
original  statutory  decree;  and  if  the  change  be  from  one  dis- 
trict to  another,  the  court  in  which  the  petition  is  filed  shall  re- 
quire notice  and  service  in  each  district  intervening  between 
the  original  and  the  new  points  of  diversion  in  the  manner  as 
now  provided  by  law  for  statutory  water  adjudications  in  said 
several  districts,  save  that  all  process  or  notice  shall  be  issued 
from  and  returnable  to  -the  court  in  which  the  petition  is  filed 
as  aforesaid.  [L.  '03,  p.  278.  §1. 

3227.  Notice  to  parties  affected — When  change  allowed. — Sec. 
63.     The  court  shall  require  proof  that  all  parties  who  may  be 
affected  by  the  change  have  bee'n  duly  notified  in'  the  proceeding, 
as  in  the  case  of  an  original  adjudication,  and  shall  hear  evi- 
dence to  determine  whether  such  change  will  injuriously  affect 
the  vested  rights  of  others  in  and  to  the  use  of  water,  and  a 
decree  shall  be  entered  permitting  the  change  as   prayed  for, 
unless   it   appear   that   such   change   will   injuriously   affect   the 
vested  rights  of  others;   and  .if  such  injury  appear,  the  court 
shall  decree  the  change  only  upon  such  terms  and  conditions 
as  may  be  necessary  to  prevent  such  injurious  effect,  or  to  pro- 
tect {he  parties  affected  or  if  impossible  so  to  do,  may  deny  said 
application.     [L.  '03,  p.  278,  §2. 

[No  further  publication  required  in  proceedings  after  decree  entered.     Sec- 
tion   3289.] 

3228.  Several   applications   in   one — Consolidation — Process. — 
Sec.  64.     Applications  to  change  two  or  more  points  of  diversion 
to   the  same  common  point   may  be  embraced  in   one  petition, 
or  if  separately  made  in  the  same  court,  may  be  consolidated; 
and  petitions  separately  filed  in  the  same  court  for  changes  to 
several  points  may  be  consolidated  by  the  court  or  judge  for 
notice,  hearing  or  otherwise,  if  it  appear  practicable  so  to  do; 
and  the  court  or  judge  shall  have  power  to  extend  the  time  for 
service,  notice  and  appearance,   and  to  make  all  necessary  or 
expedient  rules  in  the  proceeding  as  in  the  case  of  a  statutory 
water  adjudication.     [L.  '03,  p.  279,  §3. 

3229.  Certified  copy  of  decree  filed — Notice  of  change. — Sec. 
65.     Upon  the  granting  of  a  decree  of  change,  the  petitioner 
desirous  of  making  the  change,  shall  cause  to  be  prepared  cer- 
tified copies  of  the  decree,  and  shall  cause  filings  thereof  to  be 
made  with  the  county  clerk  of  the  county  in  which  the  original 
point  of  diversion  is  located,  and  with  the  county  clerk  of  the 
county  in  which  the  new  point  of  diversion  is,  or  is  to  be  located, 
and  also  in  the  office  of  the  state  engineer.    Thereupon  the  change 
decreed   shall   be  recognized   in   the   distribution   of   water,   the 
priority  rights  being  allotted  according  to  the  terms  of  the  said 
decree,  and  the  state  engineer  shall   immediately  issue  notices 


24 

to  that  effect  to  the  water  commissioners  in  the  water  districts 
affected,  and  to  the  division  superintendent  or  superintendents 
in  said  divisions.  [L.  '03,  p.  379,  §4. 

[Office  of  division  superintendent  abolished  and  division  engineers  provided 
in  their  place.     Section  3335.] 

3230.  Change  to   other  district— Copy  of   decree   filed.— Sec. 
66.     In  case  a  change  be  decreed  from  one  district  to  another, 
the  petitioner  shall  file  a  certified  copy  of  the  decree  of  change 
in  the  court  having  jurisdiction  Of  the  statutory  water  adjudi- 
cation in  the  district  of  the  new  point  of  diversion,  and  there- 
upon, on  motion,  the  court  in  which  the  copy  is  so  filed,  shall 
order  a  record  of  the  decree  of  change,  and  the  original  decree 
theretofore  entered  in  said  court  shall  accordingly  stand  modified 
as  to  the  matters  contained  in  the  said  decree  of  change.     [L.  '03, 
p.  280,  §5. 

3231.  Re-arguments,  reviews  and  appeals. — Sec.  67.     Re-argu- 
ments and  reviews  of  and  appeals  from  decrees  entered  here- 
under  may  be  had  as  in  the, case- of  a  statutory  water  adjudica- 
tion; Provided,  hoicever,  They  be  prayed  within  thirty  days  from 
the  time  of  entering  the  decree  complained  of.     [L.  '03,  p.  280,  §6. 

[Sections  3226-3231   supersede  sections  1   and  2,   p.   235,   L.   '99,   of  which  act 
section  3232  was  section  3.]  9 

3232.  Owner  may  exchange  or  loan  water  right. — Sec.  68.     It 
shall  be  lawful,  however,  for  the  owners  of  ditches  and  water 
rights  taking  water  from  the  same  stream,  to  exchange  with, 
and  loan  to,  each  other,  for  a  limited  time,  the  water  to  which 
each  may  be  entitled,  for  the  purpose  of  saving  crops  or  of  using 
the  water  in  a  more  economical  manner ;   Provided,   That  the 
owner  or  owners  making  such  loan  or  exchange,  shall  give  notice 
in  writing  signed  by  all  the  owners  participating  in  said  loan 
or  exchange,  stating  that  such  loan  or  exchange  has  been  made, 
and  for  what  length  of  time  the  same  shall  continue,  whereupon 
said  water  .commissioner  shall  recognize  the  same  in  his  distri- 
bution of  water.     [L.  '99,  p.  236,  §3. 


II.     DUTIES  OF  OWNERS. 


Section.  Section. 

3233.  Owners      shall      maintain  3248.     Water 

e  m  bankments  —  Tail 
ditch. 

3234.  Vested     rights     n  o  t    im-  3249. 

paired. 

3235.  Owner   of    ditch  crossing 

highway  must  maintain 
bridge. 

3236.  Ditch  must  be  bridged  in  3250. 

three  days — Duty  of  su- 
pervisor. 3251. 

3237.  Proceedings  against  own- 

er    for    payment — Dam- 
ages. 3252. 

3238.  Owner  of  ditch  must  pre- 

vent waste.  3253. 

3239.  Running  excess  of  water 

forbidden. 

3240.  Penalty    for    violation  of  3254. 

this  act. 

3241.  When     ditches    in     cities  3255. 

must  be  covered 

3242.  Head   of   ditch   to  be  lat-  3256. 

ticed.  3257. 

3243.  Penalty     for     failure     to 

cover  and  lattice.  3258. 

3244.  Owner  maintain  headgate 

— Size  of  timbers.  3259. 

3245.  Same — Liability  of  owner 

for  neglect  or  refusal.  3260. 

3246.  Owner      maintain      head- 

gates   and   wastegates — 

Effect  of  failure.  3261. 

3247.  Provide    locks     for    head- 

gate — Effect  of  failure. 


not  delivered  if 
owner  does  not  maintain 
headgate  and  weirs. 

Owners  of  ditch  or  reser- 
voir transferring  water 
must  maintain  headgate 
and  weirs  —  Effect  of 
failure. 

Rating  tables  furnished 
commissioners. 

When  water  not  to  be 
stored  in  reservoirs — 
Gauge  rods. 

Control  of  headgates  and 
measuring  weirs. 

Survey  of  reservoirs — Re- 
port— Gauge  rods — Fail- 
ure to  comply. 

Ditch  owners  provide  flow 
on  demand  of  users. 

Ditches  to  be  kept  in  re- 
pair— Outlets. 

Measurement  of  water. 

Penalty  for  refusal  or 
neglect  to  deliver  water. 

Water  commissioner 
measure  water — Failure. 

Jurisdiction  of  justice  of 
the  peace. 

No  person  to  receive  more 
water  than  he  is  entitled 
to. 

Duty  of  party  receiving 
more  water  than  he  is 
entitled  to. 


3233.  Owner  shall  maintain  embankments — Tail  ditch. — Sec. 
69.     The  owner  or  owners  of  any  ditch  for  irrigation  or  other 
purposes,  shall  carefully  maintain  the  embankments  thereof,  so 
that  the  waters  of   such   ditch   may  not   flood   or  damage   the 
premises  of  others,  and  shall  make  a  tail  ditch,  so  as  to  return 
the  water  in  such  ditch  with  as  little  waste  as  possible  into  the 
stream  from  which  it  was  taken.     [G.  S.,  §1728. 

[The  above  section  is  taken  from  G.  S.,  '83,  which  gives  its  origin  as  L.  '72, 
p.  144,  section  1  and  L.,  '76,  p.  78,  section  2.] 

3234.  Vested  rights  not  impaired.— Sec.  70.     Nothing  in  this 
chapter  contained  shall  be  so  construed  as  to  impair  the  prior 
vested  rights  of  any  mill  or  ditch  owner  or  other  person  to  use 
the  waters  of  any  such  water  course.     [G.  S.,  §1729;  G.  L.,  §1379; 
R,  S.,  p.  364,  §8. 

3235.  Owner  of  ditch  crossing  highway  must  maintain  bridge. 
—See.   71.     Any   ditch   company   constructing  a   ditch,   or  any 
individual  having  ditches  for  irrigation,  or  for  other  purposes, 


26  . 

wherever  the  same  be  taken  across  any  public  highway  or  public 
traveled  road,  shall  put  a  good  substantial  bridge,  not  less  than 
fourteen  feet  in  breadth,  over  such  watercourse  where  it  crosses 
said  road.  [G.  S.,  §1730;  G.  L.,  §1381;  K,  S.,  p.  364,  §10. 

3236.  Ditch  must  be  bridged  in  three  days — Duty  of  supervisor. 
—Sec.  72.     When  any  such  ditch  or  watercourse  shall  be  con- 
structed across  any  public  traveled  road,  and  not  bridged  within 
three  days  thereafter,  it  shall  be  the  duty  of  the  supervisor  of 
the  road  district  to  put  a  bridge  over  said  ditch  or  watercourse, 
of  the  dimensions  specified  in  section  10  of  this  chapter,  and  call 
on  the  owner  or  owners  of  the  ditch  to  pay  the  expenses  of  con- 
structing such  bridge.     [G.   S.,   §1731;   G.^  L.,   §1382;  E.  S.,  p. 
364,  §11. 

[Section  10  referred  to  in  last  above  section  is  section  3235.] 
[Penalty  for  owner  failing  to  place  bridge  over  ditch,   section  5829.] 

3237.  Proceedings    against    owner    for    payment — Damages.— 
Sec.  73.     If  the  owner  or  owners  of  such  ditch  refuse  to  pay 
the  bill  of  expenses  so  presented,  the  supervisor  may  go  before 
any  justice  of  the  peace  in  the  township  or  precinct,  and  make 
oath  to  the  correctness  of  the  bill,  and  that  the  owner  or  owners 
of  the  ditch  refuse  payment;  and  thereupon  such  justice  of  the 
peace   shall   issue  a   summons   against   such   owner   or   owners, 
requiring  him  or  them  to  appear  and  answer  to  the  complaint 
of  such  supervisor  in  an  action  of  debt  for  the  amount  sworn 
to  be  due,  such  summons  to  be  made  returnable  and  served,  and 
proceedings  to  be  had  thereon  as  in  other  cases;  and  in  case 
judgment  shall  be  given  against  such  owner  or  owners,  the  jus- 
tice shall  assess,  in  addition  to  the  amount  sworn  to  be  due  as 
aforesaid,  the  sum  of  ten  dollars,  as  damages  arising  from  the 
delay  of  such  owner  or  owners,  such  judgment  to  be  collected 
as  in  other  cases,  and  to  be  a  fund  in  the  hands  of  the  supervisor 
of  roads,  for  the  repairs  of  roads  in  such  precinct  or  district. 
[G.  S.,  §1732;  G.  L.,  §1383;  R,  S.,  p.  365,  §12. 

[For  liability  of  co-owners   in  caring  for  ditch  and  their  lien  for  expense 
see   se'ctions   4051-4060.] 

[Ditch  companies  must  keep  their  ditch  in  repair.     Section  993.] 

3238.  Owner   of    ditch   must    prevent    waste. — Sec.  74.     The 
owner  of  any  irrigating  or  mill  ditch  shall  carefully  maintain 
and  keep  the  embankments  thereof  in  good  repair,  and  prevent 
the  water  from  wasting.     [G.  S.,  §1733;  G.  L.,  §1385;  L.  '76,  p. 

78,    §1. 

[See  also'  section  3233.] 

3239.  Running  excess  of  water  forbidden. — Sec.  75.     During 
the  summer  season  it  shall   not  be   lawful   for  any  person   or 
persons  to  run  through  his  or  their  irrigating  ditch  any  greater 
quantity  of  water  than  is  absolutely  necessary  for  irrigating  his 


or  their  said  land,  and  for  domestic  and  stock  purposes ;  it  being 
the  intent  and  meaning  of  this  section  to  prevent  the  wasting 
and  useless  discharge  and  running  away  of  water.  [G.  S.,  §1734; 
G.  L.,  §1386;  L.  '76,  p.  78,  §2. 

3240.  Penalty  for  violation  of  this  act. — See.  70.     Any  person 
who  shall  wilfully  violate  any  of  the  provisions  of  this  act  shall, 
on  conviction  thereof  before  any  court  having  competent  juris- 
diction, be  fined  in  a  sum  of  not  less  than  one  hundred   (100) 
dollars.     Suits  for  penalties  under  this  act  shall  be  brought  in 
the  name  of  the  people  of  the  state  of  Colorado.     [G.  S.,  §1735; 
G.  L.,  §1387;  L.  '76,  p.  78,  §3. 

[The  act  above  referred  to  embraces  sections  3238-3240.] 

3241.  When  ditches  in  cities  must  be  covered. — Sec.  77.    That 
every  corporation  and  company,  whether  created  by  special  act, 
or  organized  under  the  general  incorporation  laws  of  this  state, 
and  every  partnership,  person  or  persons  who  now,  or  may  at 
any  time  hereafter,  own  or  control  any  canal  or  ditch,  or  any 
part  thereof,  being  twc  feet  in  Avidth  or  over,  and  carrying  water 
to  the  depth  of  twelve  inches  or  over,  which  canal  or  ditch,  or 
any  part   thereof,   is   Avithin   the  Corporate   limits   of   any   city 
denominated  in  the  laAv  as  of  the  first  class,  or  any  city  existing 
by  special  charter  of  a  population  equal  to  or  exceeding  said 
cities  of  the  first  class,  or  any  of  the  additions  thereto,  shall, 
at  their  OAvn  expense,  within  sixty  days  after  this  act  shall  have 
taken  effect  confine,  flume,  and  cover  over,  all  or  any  part  of  such 
canal  or  ditch,  whether  located  on  or  across  private  property, 
public  highways  or  alleys  in  said  city  or  additions  thereto,  in 
a  reasonable  and  sufficient  manner,  and  with  such  materials  as 
will  render  such  fluming  or  covering  safe  and  a  sure  protection 
to  the  lives  and  property  of  the  inhabitants  of  said  city ;  and  any 
such  corporation,  company,  partnership,  person  or  persons,  shall 
at  all   times  thereafter   keep   and   maintain   any   and   all   such 
structures,   confining,   fluming  and    coA7ering   of   such   canal   or 
ditch  in  good  order  and  repair,  at  their  own  expense.     [L.  '87, 
p.  65,  §1. 

[Cities  of  the  first  class  embrace  those  with  a  population  over  15,000,  section 
6532.] 

3242.  Head  of  ditch  to  be  latticed.— Sec.  78.     Such  corpora- 
tion, company,  partnership,   person  or  persons,  shall,   at  their 
own  expense,  safely  and  securely  lattice  or  slat  the  head  of  such 
flume  or   covering  with   proper  materials,   so   that   persons   or 
animals   cannot   accidentally  enter   such   flume  or  covering  at 
the  head  thereof,  and  pass  or  be  carried  down  the  current  of 
said  canal  or  ditch,  and  shall  thereafter  maintain  and  keep  the 
game  in  good  order  and  repair,  at  their  own  cost  and  expense. 
[L.  '87,  p.  66;  §2. 


28 

3243.  Penalty  for  failure  to  cover  and  lattice. — Sec.  79.     If 
any  such  corporation,  company,  partnership,,  person  or  persons, 
shall  fail  or  refuse  to  comply  with  any  of  the  provisions  of  the 
two  preceding  sections,  such  corporation,  company,  partnership, 
person  or  persons,  shall  forfeit  and  pay  to  the  county,  for  the 
use  of  the  common  school  fund,  the  sum  of  fifty  dollars  for  each 
and   every   day   such   failure  or   refusal   shall   continue;    to   be 
recovered  by  a  civil  action  in  the  name  of  the  people  of  the 
state  of  Colorado,  in  any  court  of  competent  jurisdiction;  Pro- 
vided, That  nothing  in  this  act  shall  be  construed  to  bar  an 
action  for  special  damages  by  any  person  who  shall  have  suffered 
such  damages  by  reason  of  any  failure  to  comply  with  any  of 
the  provisions  of.  this  act.     [L.  '87,  p.  66,  §3. 

3244.  Owner  maintain  headgate — Size   of  timbers. — Sec.   80. 
That  the  owner  or  owners  of  every  irrigating  ditch,  flume  or 
canal,  in  this  state,  shall  be  required  to  erect  and  keep  in  good 
repair  a  headgate  at  the  head  of  their  ditch,  flume  or  canal. 
Such  headgate,  together  with  the  necessary  embankments,  shall 
be  of  sufficient  height  and  strength  to  control  the  water  at  all 
ordinary  stages.    The  framework  of  such  headgate  shall  be  con- 
structed of  timber  not  less  than  four  inches  square,  and  the  bot- 
tom, sides,  and  gate  or  gates,  shall  be  of  plank,  not  less  than  two 
inches  in  thickness.     [G.  S.,  §1736;  L.  '81,  p.  165,  §1. 

[See  also  section  3248.] 

3245.  Same — Liability  of  owner  for  neglect  or  refusal. — Sec. 
81.     Owners  of  all  ditches  shall  be  liable  for  all  damages  result- 
ing from  their  neglect  or  refusal  to  comply  with  the  provisions 
of  section  one  of  this  act.     [G.  S.,  §1737;  L.  '81,  p.  165,  §2. 

[Section  1  above  referred  to  is  section  3244.] 

3246.  Owner  maintain    headgates    and   wastegates — Effect  of 
failure. — Sec.  82.     All  persons,  associations  or  corporations  who 
have  heretofore  or  who  may  hereafter  divert  water  for  purposes 
of  irrigation  from  any  of  the  public  streams  of  the  state,  shall 
erect    and    maintain    headgates    and    wastegates    in    connection 
therewith,  and  in  case  of  failure  or  neglect,  or  refusal  to  do  so, 
after  five  days'  notice  has  been  given  by  the  water  commissioner 
or  state  engineer,  then  said  headgates  shall  be  constructed  by 
the  water  commissioner  of  the  district  within  which  said  ditch, 
canal  or  conduit  may  be  located,  and  if,  upon  demand,  the  owner 
or  owners  of  said  ditch,  canal  or  conduit  shall  neglect  or  refuse 
to  pay  the  expenses  thereof,  then  the  said  water  commissioner 
shall  take  such  proceedings  to  recover  the  same  as  is  now  pro- 
vided for  by  sections  seventeen  hundred  and  thirty,  seventeen 
hundred  and  thirtv  one  and  seventeen  hundred  and  thirtv-two 


of  the  general  statutes  of  1883,  in  the  case  of  failure  to  build  and 
maintain  bridges.     [L.  '89,  p.  161,  §1. 

[G.   S.,   sections  1730,  1731  and  1732  above  referred  to   are  sections  3235,  3236 
and  3237  respectively.]  , 

3247.  Provide  locks  for  headgate — Effect  of  failure. — Sec.  83. 
All   persons,   associations   or   corporations   shall  put   and   keep 
suitable  locks  and  fastenings  on  their  headgates,  where  water 
is  conducted  from  the  public  streams  or  heads  of  supply,  and 
if  said  persons,  associations  or  corporations  refuse  or  neglect 
to  provide  locks  and  suitable  fastenings  for  said  headgates,  after 
five  days'  notice  by  the  water  commissioner  of  the  district,  or 
by  the  state  engineer,  it  is  made  the  duty  of  the  water  commis- 
sioner of  the  water  district,  and  its  superintendent,  to  provide 
suitable  locks  and  fastenings,  and  if  the  owner  or  owners  of  said 
ditch,  canal  or  conduit  shall  neglect  or  refuse  to  pay  the  ex- 
penses thereof,  the  water  commissioner  shall  take  such  proceed- 
ings to  recover  the  same  as  are  provided  in  section  one  of  this 
act;  the  keys  of  said  locks  to  be  under  the  control  and  in  pos- 
session  of  the   water  commissioner  of  the  district  during  the 
season  of  irrigation  or  domestic  distribution  of  water.     [L.  '89, 
p.  161,  §2. 

[Section  1  above  referred  to  is  section  3246.] 

3248.  Water  not  delivered  when  owner  does  not  maintain  head- 
gates  and  weirs. — Sec.  81.     Whenever  any  owner  or  owners  of 
any  irrigation  ditch,  canal,  tiuine  or  reservoir  in  this  state  taking 
water  from  any  stream,  shall  fail  to  erect  or  maintain  in  good 
repair,  at  the  point  of  intake  of  such  ditch,  canal,  flume  or  reser- 
voir, a  suitable  and  proper  headgate,  and  measuring  flume  or 
Weirs,    together   with    the   necessary    embankments   therefor,   of 
sufficient  height  and  strength  to  control  the  water  at  all  ordinary 
stages,  with  a  frame  work  constructed  of  timber  not  less  than 
four  inches  square  at  the  bottom,  sides  and  gate  or  gates  of  plank 
not  less  than  two  inches  in  thickness,  then  the  state  engineer  or 
superintendent  of  irrigation  shall,  upon  ten  days'  previous  notice 
in  writing  duly  served  upon  the  owner  or  owners  of  such  irriga- 
tion   ditch,    canal,    flume   or   reservoir,   or   upon   any   agent   or 
employe  representing  or  controlling  the  same,  refuse  to  deliver 
to  such  owner  or  owners  of  such  irrigating  ditch,  canal,  flume 
or  reservoir,  any  water  from  such  stream,  until  such  owner  or 
owners  shall  cause  to  be  erected  or  repaired  the  headgate,  head- 
gates  or  measuring  flumes  of  such  ditch,  canal,  flume  or  reservoir. 
[L.  '01,  p.  193,  §1. 

[See  also  section  3244.] 

[Office    of    superintendent    of    irrigation    abolished    and    division    engineers 
provided  in  their  place.     See  section  3335.] 


30 

3249.  Owner  of  ditch  or  reservoir    transferring    water    must 
maintain  headgate  and  weirs — Effect  of  failure. — Sec.  85.     When- 
ever the  owner  or  owners  of  any  irrigation  ditch,  canal  or  reser- 
voir transferring  water  from  one  public  stream  to  another,  or 
from  a  reservoir,  ditch  or  flume  to  a  stream,  in  order  that  the 
same   ma}'   be   diverted   therefrom   for   irrigation   or   any   other 
purposes,  shall  fail  and  neglect  to  construct  suitable  and  proper 
measuring  flumes  or  weirs  for  the  proper  and  accurate  determi- 
nation of  the  amount  and  volume  of  water  turned  into,  carried 
through  and  diverted  out  of  said  public  stream,  then  the  state 
engineer  or  the  superintendent  of  irrigation  shall,  upon  five  days' 
previous  notice  in  writing  duly  served  upon  the  owner  or  owners 
of  any   such   irrigation   ditch,   canal   or  reservoir,   or   agent   or 
employe  thereof,  so  transferring  water  from  one  public  stream 
to  another,  or  from  any  ditch,  canal  or  reservoir  to  a  public 
stream  for  conveyance  therethrough,  refuse  to  allow  to  be  taken 
and  diverted  therefrom,  any  water  whatever  on  account  of  de- 
livery of  water  thereto,  for  such  time  and  until  such  owner  or 
owners  shall  cause  to  be  erected  or  repaired  such  flumes  or  weirs 
at  the  point  of  delivery  to  and  taking  from  said  public  stream 
so  used  as  a  conduit.     [L.  '01,  p.  194,  §2. 

[See  also  section  3223.] 

[See  note,  section  3248  as  to  superintendent  of  irrigation.] 

3250.  Eating  tables  furnished  commissioners. — Sec.  86.     The 
state  engineer   or   superintendent   of   irrigation   shall   rate   the 
measuring  flumes  and  \veirs  referred  to  in  sections  1  and  2  of 
this  act,  and  shall  supply  the  superintendent  of  the  division  and 
the  water  commissioner  of  the  district  in  which  such  measuring 
flumes  or  weirs  are  located,  with  a  rating  table,  which  shall  be 
used  by  them   in   measuring  water  flowing  to   and   from   such 
public  stream.     [L.  '01,  p.  194,  §3. 

[Sections  1  and  2  above  referred  to  are  sections  3248  and  3249.] 
[See  note,  section  3248  as  to  superintendent  of  irrigation.] 

3251.  When  water  not  to  be  stored  in  reservoirs — Gauge  rod. 
—Sec.  87.     The  owners  or  possessors  of  reservoirs  shall  not  have 
the   right   to   impound   any   water   whatever    in    such   reservoir 
during  the  time  that  such  water  is  required  in  ditches  for  direct 
irrigation  or  for  reservoirs  holding  senior  rights.     A  gauge  rod 
shall  be  permanently  fixed  and  maintained  at  the  outlets  of  said 
reservoirs,  and  if  any  owner  or  possessor  of  any  reservoir  shall 
fail  or  refuse  within  thirty  days  after  this  act  goes  into  effect, 
to  provide,  fix  and  maintain  such  gauge  rod  or  rods,  as  aforesaid, 
then  and  in  that  event  the  owner  or  possessor  of  such  reservoir 
shall  not  be  entitled  to  impound  any  water  whatever  in   said 


31 

reservoir  or  reservoirs  until  the  provisions  of  this  section  are 
fully  complied  with.     [L.  -'01,  p.  194,  §4. 

3252.  Control  of  headgates    and    measuring    weirs. — Sec.  88. 
All    headgates   and    measuring   weirs   used    in   connection    with 
canals,    flumes,    ditches   and   reservoirs   for   the   measuring   and 
delivery   of   water   therefrom   and    thereto,   shall   be   under   the 
supervision  and  control  at  all  times  of  the  state  engineer,  the 
superintendent  of  irrigation  of  the  water  division  and  the  water 
commissioner  of  the  water  district  wherein  such  headgate  and 
measuring  weirs  are  located.     [L.  '01,  p.  195,  §5. 

3253.  Survey  of  reservoirs — Report — Gauge  rods — Failure   to 
comply. — Sec.  SO.     The  owner  or  owners  of  any  reservoir  situate 
upon  or  in  the  bed  of  any  natural  stream  or  through  which  any 
natural   stream   runs,   for  the   purpose   of   storing  water   to  be 
diverted  at  a  point  further  down  said  stream,  shall,  at  the  ex- 
pense of  the  owner  or  owners,  cause  a  complete  survey  of  the 
contour  lines  of  said  reservoir  to  be  made  by  the  state  engineer, 
and  it  shall  be  the  duty  of  the  state  engineer  to  make  such 
survey  upon  the  request  of  the  owner,  which  said  contour  lines 
shall  be  ascertained  for  at  least  every  vertical  foot  in  depth,  and, 
in  all  cases  where  deemed  necessary  by  the  state  engineer,  for 
fractions  of  a  foot;  and  a  table  to  be  prepared  showing  the  num- 
ber of  cubic   feet,  capacity  of  said  reservoir  for  each  foot  in 
depth   and   fraction   thereof;   and   a  gauge  rod   placed   in   said 
reservoir,  marked  in  correspondence  with  said  contour  line  from 
which  the  amount  of  water  stored  in,  or  taken  from,  said  reser- 
voir, may  be  ascertained.     And  in  case  of  failure  so  to  do,  the 
said  state  engineer  or  superintendent  of  irrigation  shall  refuse 
to  be  allowed  to  be  taken  into,  or  diverted  from,  said  reservoir, 
any  water  whatever;  Provided,  however,  That  in  all  cases  where 
for  any  reason  said  state  engineer  may  find  it  impracticable  to 
make  said  survey,  the  said  owner  or  owners  of  said  reservoir 
may  continue  to  store  and  deliver  water  upon. providing  a  suit- 
able and  proper  measuring  flume  or  weir  for  the  accurate  ascer- 
tainment of  the  amount  of  water  discharged  from  said  reservoir. 
[L.  '01,  p.  195,  §G. 

3254.  Ditch  owners  provide  flow  on  demand  of  users. — Sec.  90. 
Every  person  or  company  owning  or  controlling  any  canal  or 
ditch  used  for  the  purposes  of  irrigation  and  carrying  water  for 
pay.  shall,  when  demanded  by  the  users  during  the  time  from 
April  1,  until  November  1  in  each  year,  keep  a  flow  of  water 
therein,  so  far  as  may  be  reasonably  practicable  for  the  purpose 
of   irrigation,   sufficient   to  meet   the   requirements   of   all   such 
persons  as  are  properly  entitled  to  the  use  of  water  therefrom, 
to  the  extent,  if  necessary,  to  which  such  person  may  be  entitled 


32 

to  water,  and  no  more;  Provided,  however.  That  whenever  the 
rivers,  or  public  streams  or  sources  from  which  the  water  is 
obtained  are  not  sufficiently  free  from  ice,  or  the  volume  o1 
water  therein  is  too  low  and  inadequate  for  that  purpose,  then 
such  canal  or  ditch  shall  be  kept  with  as  full  a  flow  of  water 
therein  as  may  be  practicable,  subject,  however,  «to  the  rights  ol 
priorities  from  the  streams  or  other  sources,  as  provided  by  law 
and  the  necessity  of  cleaning,  repairing  and  maintaining  the 
same"  in  good  condition.  [L.  '93,  p.  299,  §1;  amending  L.  '87 
p.  304,  §1. 

3255.  Ditches  to  be  kept  in  repair — Outlets. — Sec.  91.    Tin 
owners,  or  persons  in  control,  of  any  canal  or  ditch  used  foi 
irrigating  purposes,  shall  maintain  the  same  in  good  order  anc 
repair,  ready  to  receive  water  by  April  15,  in  each  year,  so  fai 
as  can  be  accomplished  by  the  exercise  of  reasonable  care  anc 
diligence,  and  shall  construct  the  necessary  outlets  in  the  banks 
of  the  canal  or  ditch  for  a  proper  delivery  of  the  water  to  persons 
having  paid  up  shares,  or  who  have  rights  to  the  use  of  water 
Provided,  hoivever,  That  a  multiplicity  of  outlets  in  the  cana 
or  ditch  shall  at  all  times  be  avoided,  so  far  as  the  same  shal 
be  reasonably  practicable,  and  the  location  of  the  same  shal 
be  under  the  control  of,  and  shall  be  at  the  most  convenient  anc 
practicable  points  consistent  with  the  protection  and  safety  o: 
the    ditch    for    the    distribution    of    water    among    the    various 
claimants  thereof;  and  such  location  shall  be  under  the  contro 
of  a  superintendent.     [L.  '87,  p.  305,  §2. 

[See  also  section  993.] 

3256.  Measurement  of  water. — Sec.  92.     It  shall  be  the  duf< 
of  those  owning  or  controlling  such  canals  or  ditches,  to  appoin 
a  superintendent,  whose  duty  it  shall  be  to  measure  the  watei 
from  such  canal  or  ditch  through  the  outlets,  to  those  entitlec 
thereto  according  to  his  or  her  pro  rata  share.     [L.  '87,  p.  305,  §3 

3257.  Penalty  for  refusal  or  neglect  to  deliver  water. — Sec.  93 
Any  superintendent,  or  any  person  having  charge  of  the  saic 
ditch,  who  shall  wilfully  neglect  or  refuse  to  deliver  water,  as 
in  this  act  provided,  or  any  person  or  persons  wrho  shall  preven 
or  interfere  with  the  proper  delivery  of  water  to  the  person  01 
persons  having  the  right   thereto,  shall  be  guilty   of  a   misde 
meanor,  and  upon  conviction  thereof  shall  be  subject  to  a  fin< 
of  not  less  than  ten  nor  more  than  one  hundred  dollars  for  eacl 
offense,  or  imprisonment  not  exceeding  one  month,  or  by  botl 
such  fine  and  imprisonment;  and  the  money  thus  collected  shal 
be  paid  into  the  general  fund  of  the  county  in  which  the  misde 
meanor  has  been  committed;  and  the  owner  or  owners  of  sucl 
ditches  shall  be  liable  in  damages  to  the  person  or  persons  de 


33 

prived  of  the  use  of  the  water  to  which  They  were  entitled  as 
in  this  act  provided.     [L.  '87,  p.  305.  §4. 

3258.  Water  commissioner  measure  water — Failure. — Sec.  94. 
Any  water  commissioner,  or  his  deputy,  or  assistant,  who  shall 
wilfully  neglect  or  refuse,  after  being  called  upon  in  accordance 
with    section    1758    of    the    General    Statutes    of    the    state,    to 
promptly  measure  water  from  the  stream,   or   other   source   of 
supply,    into   the   irrigating:   canals   or   ditches,   in   his   district, 
according  to  their  respective  priorities,  to  the  extent  to  which 
water  may  be  actually  necessary  for  the  irrigation  of  lands  under, 
such  canals  or  ditches,  shall  be  deemed  guilty  of  a  misdemeanor, 
and  shall  be  subject  to  the  same  penalty  as  provided  in  section 
4  of  this  act.     [L.  '87,  p.  305,  §5. 

[G.    S.,    section   1758  above  referred   to   is   section  3430.] 
[Section  4  above  referred  to  is  section  3257.] 

3259.  Jurisdiction  of  justice  of  the  peace. — Sec.  05.     In  all 
cases  declared  misdemeanors  by  this  act,  any  justice  of  the  peace 
of  the  county  in  which  the  offense  was  committed,  may,  upon 
complaint  being  made,  as  is  now  required  by  law,  issue  a  war- 
rant directed  to  any  proper  officer  of  the  county  for  the  arrest 
of  any  person  so  charged  with  any  misdemeanor,  and  upon  the 
arrest  of  such  person  or  persons,  the  justice  of  the  peace  before 
whom  such  person  or  persons   may  be  brought  for  trial,   shall 
hear  and  determine  the  cause  and,  if  he  find  the  accused  guilty, 
shall  assess  the  tine,  and  if  imprisonment  be  a  portion  of  the 
sentence,  then  to  fix  the  term  of  imprisonment,  or  both,  as  pro- 
vided in  section  4  of  this  act;  Provided,  The  accused  may  have 
a  trial  by  jury  which  shall  be  summoned  as  in  cases  before  jus- 
tices of  the  peace  for  assault  and  battery.     [L.  '87,  p.  306,  §6. 

[For  summoning  jury  see  section  3S63.] 
[Section  4  above  referred  to  is  section  3257.] 

3260.  No  person  to  receive  more  water  than  he  is  entitled  to. 
Sec.  90.     That  it  shall  be  the  duty  of  every  person,  who  is  en 
titled  to  take  water  for  irrigation  purposes  from  any  ditch,  canal, 
or  reservoir,  to  see  that  he  receives  no  more  water  from  such 
ditch,  canal,  or  reservoir  through  his  headgate,  or  by  any  ways 
or  means  whatsoever,  than  he  is  entitled  to,  and  that  he  shall,  at 
all  times,  take  every  precaution  to  prevent  more  water  than  he 
is  entitled  to,  coming  from  such  ditch,  canal,  or  reservoir,  upon 
his  land.     [L.  '87,  p.  312,  §1. 

3261.  Duty  of  party  receiving  more  water  than  he  is  entitled 
to. — Sec.  97.     That  it  shall  be  the  duty  of  every  such  person, 
taking  water  from  any  ditch,  canal,  or  reservoir,  to  be  used  for 
irrigation  purposes,  on  finding  that  he  is  receiving  more  water 
from  such  ditch,  canal  or  reservoir,  either  through  his  headgate, 


34 

or  bv  means  of  leaks,  or  by  any  means  whatsoever,  immediately 
to  take  steps  to  prevent  his  further  receiving  more  water  from 
such  ditch,  canal  or  reservoir,  than  he  is  entitled  to,  and  if 
knowingly  he  permits  such  extra  water  to  come  upon  his  land, 
from  such  ditch,  canal  or  reservoir,  and  does  not  immediately 
notify  the  owner  or  owners  of  such  ditch,  or  take  steps  to  pre- 
vent its  further  flowing  upon  his  land,  he  shall  be  liable  to  any 
person,  company  or  corporation,  who  may  be  injured  by  such 
extra  appropriation  of  water,  for  the  actual  damage  sustained 
by  the  party  aggrieved;  which  damages  shall  be  adjudged  to  be 
paid,  together  with  the  costs  of  suit,  and  a  reasonable 'attorney's 
fee,  to  be  fixed  by  the  court  and  taxed  with  the  costs.  [L.  '87, 
p.  312,  §2. 


III.     RATE  OF  CHARGE  FOR  WATER. 


Section. 

3262.  Regultaing  charges  —  Pe- 
tition —  Affidavits— Pro- 
ceedings before  commis- 
sioners. 

Powers  and  duties  of  com- 
missioners —  Hearing 
—Order  —  Existing  con- 
tracts. 

Right  to  continue  pur- 
chasing water — S  t  o  c  k- 
holders — Rights. 

3265.  County  commissioners 
hear  and  consider  appli- 
cations. 

Commissioners  appoint 
day  for  hearing  parties 
interested. 


3263. 


3264. 


3266. 


3268. 


3269. 
3270. 
3271. 

3272. 
3273. 
3274. 
3275. 


Section. 

3267.  Hearing  —  Order  fixing 
date  of  hearing— Service 
of  order. 

Hearing  —  Testimony — 
Commissioners  fix  maxi- 
mum rate. 

False  swearing. 

Repeal. 

Bonus  deemed  an  extor- 
tionate rate — Recovery. 

Penalty  for  collecting  ex- 
cessive rate. 

Penalty  for  refusal  to  de- 
liver water. 

Action  when  corporation 
refuses  to  deliver  water. 

"Person"  defined  —  Liabil- 
ity. 

3262.  Regulating  charges — Petition — Affidavits — Proceedings 
before  commissioners. — Sec.  98.  The  county  commissioners  of 
each  county  shall,  at  their  regular  January  session  in  each  year, 
hear  and  consider  any  and  all  applications  which  may  be  made 
to  them  by  any  party  or  parties  interested  in  procuring  water 
for  irrigation  by  purchase  from  any  ditch  or  reservoir  furnishing 
and  selling  water  or  proposing  to  furnish  water  for  sale,  the 
whole  or  upper  part  of  which  shall  lie  in  such  county,  which 
application  shall  be  supported  by  such  affidavit  or  affidavits  as 
the  applicant  may  see  proper  to  present,  showing  reasonable 
cause  for  such  board  to  proceed  to  fix  the  price  of  water  to  be 
thereafter  sold  from  such  ditch  or  reservoir,  and  if  such  board 
of  commissioners  shall,  upon  examination  of  such  affidavit  or 
affidavits,  or  from  the  oaths  of  witnesses  in  addition  thereto, 


35 

find  that  the  facts  sworn  to  show  the  application  to  be  in  good 
faith,  and  that  there  is  reasonable  grounds  to  believe  that  un- 
just prices  are,  or  are  likely  to  be,  changed  for  water  from  such 
ditch  or  reservoir,  they  shall  enter  an  order  fixing  a  day.  not 
sooner  than  forty  days  thereafter,  nor  later  than  the  third  day 
of  the  next  regular  session  of  their  board,  when  they  will  hear  all 
parties  directly  or  indirectly  interested  in  said  ditch  or  reservoir, 
or  in  procuring  water  therefrom  for  irrigation,  who  may  appear, 
as  well  as  all  'testimony  by  witnesses,  or  depositions  taken  on 
notice  as  hereinafter  provided,  touching  the  said  ditch  or  reser- 
voir, and  the  cost  of  furnishing  water  therefrom,  at  which  time 
all  persons  or  corporations  interested  in  said  ditch  or  reservoir, 
as  well  as  all  interested  in  obtaining  water  therefrom,  or  in 
lands  which  may  be  irrigated  therefrom,  may  appear  by  them- 
selves, their  agents,  or  attorneys,  and  said  commissioners  shall 
then  proceed  to  take  action  in  the  matter  of  fixing  such  price  of 
water,  provided  the  applicant  shall,  within  ten  days  from  the 
time  of  entering  such  order,  cause  a  copy  thereof,  duly  certified, 
to  be  delivered  to  the  owner  of  such  ditch  or  reservoir,  if  it  be 
owned  by  one  person,  or  each  of  the  owners,  if  it  be  owned  by 
several  persons,  or  to  the  president,  secretary  or  treasurer  of 
the  company,  if  it  belongs  to  a  corporation  or  association  having 
such  officers,  or  if  such  owner  cannot  be  found,  he  shall  cause 
such  copy  to  be  left  at  his  usual  place  of  residence,  with  some 
person  or  member  of  his  family  residing  there,  %aiid  over  four- 
teen years  of  age,  and  if  such  ditch  officer  cannot  be  found,  he 
shall  cause  such  copy  to  be  left  at  the  office  or  place  of  business 
of  the  company  of  which  he  is  such  officer,  or  at  his  residence, 
if  such  company  have  no  place  of  business,  and  if  such  ditch  is 
owned  by  several  owners,  not  an  incorporated  company,  it  shall 
be  sufficient  to  serve  such  notice  by  delivering  one  such  copy 
each  to  a  majority  of  them,  and  such  applicant  shall  make  af- 
fidavit of  the  manner  in  which  such  copy  or  copies  have  been 
served.  Depositions  mentioned  in  section  one  hereof,  to  be  used 
before  said  commissioners,  shall  be  taken  before  any  officer  in 
the  state  authorized  by  law  to  take  depositions,  upon  reasonable 
notice  being  given  to  the  opposite  party  of  the  time  and  place  of 
taking  such  depositions.  [G.  S.,  §1738;  L.  '79,  p.  94,  §1. 


[See  also  Constitution,   article  16,   section  8.] 
[Section   1  above  referred  to   is   the   above   section.] 

[For  officers  before  whom  depositions  may  be  taken  see  Code,  section  376, 
p.  140.] 

[Sections  3262  and  3263  are  .doubtless  superseded  by  sections  3265-3268.] 

3263.  Powers  and  duties  of  commissioners — Hearing — Order — 
Existing-  contract. — Sec.  99.  Said  board  shall  hear  and  examine 
all  legal  testimony  or  proofs  offered  by  any  of  the  parties  inter- 


36 

ested  as  before  mentioned,  as  well  concerning  the  value  of  the 
construction  of  such  ditch  or  reservoir  as  the  cost  and  expense 
of  maintaining  and  operating  the  same,  and  all  matters  which 
may  affect  the  just  price  and  value  of  water  to  be  furnished 
therefrom ;  and  they  shall  have  power  to  issue  subpoenas  to  wit- 
nesses and  compel  their  attendance,  which  subpoenas  shall  be 
served  by  the  sheriff  of  the  proper  county  when  required;  and 
also  to  compel  the  production  of  books  and  papers  required 
for  evidence  in  as  full  and  ample  a  nianner  as  the  district  court 
mow  has.  They  may  adjourn  the  hearing  from  time  to  time  to 
further  the  ends  of  justice  or  suit  the  general  convenience  of 
parties.  Upon  hearing  and  considering  all  the  matters  and  facts 
involved  in  the  case,  the  board  of  commissioners  shall  enter  an 
order  naming  and  describing  the  ditch  or  reservoir  with  suf- 
ficient certainty,  and  fixing  a  just  price  upon  all  water  to  be 
thereafter  sold,  which  price  shall  not  be  thereafter  changed 
oftener  than  once  in  two  years ;  Provided,  That  no  price  so  fixed 
shall  affect  the  rights  of  parties,  or  their  lawful  assignees  or 
grantees,  who  may  have  contracts  with  the  company,  association 
or  person  owning  such  ditch  or  reservoir,  or  their  lessees, 
grantees  .or  successors,  nor  the  rights  of  such  owners,  lessees 
or  grantees  under  such  contract,  nor  shall  it  in  any  way  affect 
or  hinder  the  making  of  such  contract.  [G.  S.,  §1739;  L.  '79, 
p.  90,  §2. 

[See  note  section  3262.] 

3264.  Right  to  continue  purchasing  water — Stockholders — 
Rights. — Sec.  100.  Any  person  or  persons,  acting  jointly  or  sev- 
erally, who  shall  have  purchased  and  used  water  for  irri- 
gation for  lands  occupied  by  him,  her  or  them,  from  any 
ditch  or  reservoir,  and  shall  not  have  ceased  to  do  so  for 
the  purpose  or  with  intent  to  procure  water  from  some  other 
source  of  supply,  shall  have  a  right  to  continue  to  purchase 
water  to  the  same  amount  for  his,  her  or  their  lands,  on  paying 
or  tendering  the  price  thereof  fixed  by  the  county  commission- 
ers as  above  provided,  or,  if  no  price  shall  have  been  fixed  by 
them,  the  price  at  which  the  owners  of  such  ditch  or  reservoir 
may  be  then  selling  water,  or  did  sell  water  during  the  then 
last  preceding  year.  This  section  shall  not  apply  to  the  case  of 
those  who  may  have  taken  water  as  stockholders  or  shareholders 
after  they  shall  have  sold  or  forfeited  their  shares  or  stock,  un- 
less they  shall  have  retained  a  right  to  procure  such  water  by 
contract,  agreement  or  understanding,  and  use  between  them- 
selves and  the  owners  of  such  ditch,  and  not  then  to  the  injury 
of  other  purchasers  of  water  from  or  shareholders  in  the  same 
ditch.  [G.  SM  §1740;  L.  ?79,  p.  96,  §3. 


37 

3265.  County  commissioners  hear  and  consider  applications.— 
Sec.   101.     The  county  commissioners  of  each  county  shall,  at 
their  regular  sessions  in  each  year,  and  at  such  other  sessions 
as  they  in  their  discretion  may  deem  proper,  in  view  of  the  irri- 
gation and  harvesting  season,  and  the  convenience  of  all  parties 
interested,  hear  and  consider  all  applications  which  may  be  made 
to  them  by  any  party  or  parties  interested,  either  in  furnishing 
and  delivering  for  compensation  in  any  manner,  or  in  procuring 
for  such   compensation,   water  for  irrigation,   mining,   milling, 
manufacturing,  or  domestic  purposes,  from  any  ditch,  canal,  con- 
duit, or  reservoir,  the  whole  or  any  part  of  which  shall  lie  in 
such  county.    Which  application  shall  be  supported  by  such  affi- 
davits as  the  applicant  or  applicants  may  present,  .showing  rea- 
sonable cause  for  such  board  of  county  commissioners  to  proceed 
to  fix  a  reasonable  maximum  rate  of  compensation  for  water  to 
be  thereafter  delivered  from  such  ditch,  canal,  conduit,  or  reser- 
voir, within  such  county.     [L.  '87,  p.  291,  §1. 

[Sections   3265-3268   doubtless    supersede   sections  3262   and   3263.] 

3266.  Commissioners  appoint  day  for  hearing  parties  interested. 
— Sec.  102.    Every  such  board  of  commissioners  shall,  upon  ex- 
amination of  such  affidavit  or  affidavits,  or  from  the  oaths  of 
witnesses  in  addition  thereto,  if  they  find  that  the  facts  sworn 
to  show  the  application  to  be  in  good  faith,  and  that  there  are 
reasonable  grounds  to  believe  that  unjust  rates  of  compensa- 
tion are,  or  are  likely  to  be,  charged  or  demanded  for  water  from 
such  ditch,  canal,  conduit,  or  reservoir,  shall  enter  an  order  fix- 
ing a  day  not  sooner  than  twenty  days  thereafter,  nor  later  than 
the  third  day  of  the  next  regular  session  of  their  board,  wThen 
they  will   hear  all   parties  interested  in  such   ditch,   or  other 
waterworks  as  aforesaid,  or  in  procuring  wrater  therefrom,  for 
any  of  the  said  uses,  as  well  as  all  documentary  or  oral  evidence 
or  depositions,  taken  according  to  law,  touching  the  said  ditch, 
or  other  work  as  aforesaid,  and  the  cost  of  furnishing  water 
therefrom.     [L.  '87,  p.  292,  §2. 

3267.  Hearing — Order  fixing  date  of  hearing — Service  of  order. 
—Sec.  103.    At  the  time  so  fixed,  all  persons  interested  as  afore- 
said, on  either  side  of  the  controversy,  in  lands  which  may  be 
irrigated  from  such  ditch,  or  other  work  aforesaid,  may  appear 
by  themselves,  their  agents,  or  attorneys,  and  said  commission- 
ers shall  then  proceed  to  take  action  in  the  matter  of  fixing 
such  rates  of  compensation  for  the  delivery  of  water;  Provided, 
The  applicant  or  applicants  (if  the  application  be  made  by  a 
party  or  parties  as  aforesaid  desirous  of  procuring  water),  shall, 
within  ten  days  from  the  time  of  entering  the  said  order  fixing 
the  hearing,  cause  a  copy  of  such  order,  duly  certified,  to  be 


38 

delivered  to  the  owner,  or  owners,  of  such  ditch,  canal,  conduit, 
or  reservoir,  or  to  the  president,  secretary,  or  treasurer  of  the 
company,  if  it  be  owned  by  a  corporation  or  association  having 
such  officers.  If  any  such  owner  cannot  be  found,  a  copy  shall 
be  left  at  his  usual  place  of  abode,  with  some  person  residing 
there,  over  twelve  years  of  age;  and  if  such  officer  of  any  corpo- 
ration or  association  cannot  be  found,  such  copy  shall  be  left 
at  the  usual  place  of  business  of  the  company  of  which  he  is  an 
officer,  or  at  his  residence  if  such  company  have  no  place  of 
business;  and  if  such  ditch,  or  other  work  aforesaid,  shall  be 
owned  by  several  owners  not  being  an  incorporated  company,  it 
shall  be  sufficient  to  serve  notice  by  delivering  copies  to  a  ma- 
jority of  them.  If  the  applicant  be  the  owner  or  party  control- 
ling such  ditch,  canal,  conduit,  or  reservoir,  such  notice  shall  be 
given  by  causing  printed  copies  of  such  order  in  hand  bill  form, 
in  conspicuous  type,  to  be  posted  securely  in  ten  or  more  public 
places  throughout  the  district  watered  from  such  ditch,  or  other 
work  aforesaid  (if  the  water  be  used  for  irrigation),  and  one 
copy  shall  be  posted  for  every  mile  in  length  of  such  ditch;  but 
if  such  ditch,  or  other  work,  be  for  the  supply  of  water  for  mill- 
ing or  mining,  it  shall  be  sufficient  to  serve  such  copy  on  the 
parties  then  taking  water  therefrom.  The  person  or  persons 
making  such  service  or  posting  such  printed  copies,  shall  make 
affidavit  of  the  manner  in  which  the  same  has  been  done,  which 
affidavit  shall  be  filed  with  the  said  board  of  county  commis- 
sioners. Depositions  mentioned  in  section  2  hereof,  to  be  used 
before  said  commissioners,  shall  be  taken  before  any  officer  in 
the  state  authorized  by  law  to  take  depositions,  upon  reasonable 
notice  being  given  to  the  opposite  party  of  the  time  and  place 
of  taking  the  same.  [L.  '87,  p.  292,  §3. 

[Section  2  referred  to  is  section  3266.] 

[Officers  before  whom  depositions  may  be  taken,  Code,  section  376,  p.  140.] 

3268.  Hearing — Testimony — Commissioners  fix  maximum  rate. 
— Sec.  104.  Said  board  of  commissioners  may  adjourn  or  post- 
pone any  hearing  from  time  to  time  as  may  be  found  necessary, 
or  for  the  convenience  of  parties,  or  of  public  business;  and  they 
shall  hear  and  examine  all  legal  testimony  or  proofs  offered  by 
any  party  interested  as  aforesaid,  as  well  concerning  the  orig- 
inal cost  and  present  value  of  works  and  structure  of  such  ditch, 
canal,  conduit  or  reservoir,  as  the  cost  and  expense  of  main- 
taining and  operating  the  same,  and  all  matters  which  may  af- 
fect the  establishing  of  a  reasonable  maximum  rate  of  compen- 
sation for  water  to  be  furnished  and  delivered  therefrom;  and 
they  may  issue  subpoenas  for  witnesses,  which  subpoenas  shall 
be  served  bv  the  sheriff  of  the  county,  who  shall  receive  the  law- 


39 

ful  fees  for  all  such  service;  and  said  board  may  also  issue  a 
subpoena  for  the  production  of  all  books  and  papers  required 
for  evidence  before  them.  Upon  hearing  and  considering  all 
the  evidence  and  facts,  and  matters  involved  in  the  case,  said 
board  of  commissioners  shall  enter  an  order  describing  the  ditch, 
caual,  conduit,  reservoir,  or  other  work  in  question,  with  suffi- 
cient certainty  and  fixing  a  just  and  reasonable  maximum  rate 
of  compensation  for  water  to  be  thereafter  delivered  from  such 
ditch  or  other  work  as  last  aforesaid,  within  the  county  in  which 
such  commissioners  act,  and  such  rate  shall  not  be  charged 
within  two  years  from  the  time  when  they  shall  be  so  fixed, 
unless  upon  good  cause  shown.  The  district  court  of  the  proper 
county,  or  the  judge  thereof  in  vacation,  may,  in  case  of  refusal 
to  obey  the  subpoena  of  the  board  of  county  commissioners,  com- 
pel obedience  thereto,  or  punish  for  refusal  to  obe;^  aftet  hear- 
ing, as  in  cases  of  attachment,  for  contempt  of  such  district 
court.  [L.  '87,  p.  293,  §4. 

[Doubtless  word  "charged"  in  line  Ifi,  above,  should  read  "changed."] 

3269.  False  swearing. — Sec.  105.     Every  person  who  shall 
swear  or  affirm  falsely  in  any  matter,  or  testify  falsely  after 
being  duly  sworn  or  having  affirmed  as  a  witness  in  any  pro- 
ceeding provided  for  in  this  act,  shall  be  deemed  guilty  of  per- 
jury, and  on  conviction  shall  be  punished  accordingly.     [L.  '87, 
p.  294,  §5. 

[Punishment  for  perjury.     Section  1716.] 

3270.  Repeal. — Sec.  106.     All  acts  and  parts  of  acts  incon- 
sistent with  the  provisions  of  this  act  are  hereby  repealed,  but 
such  repeal  shall  not  work  any  interference  with  any  proceeding 
by  any  board  of  county  commissioners  now  pending,  saving  that 
any  such  proceeding  may,  at  the  request  of  either  party,  be  car- 
ried on  to  completion  under  the  provisions  hereof.   [L.  '87,  p. 
294,  §6. 

[Does  this  repeal  sections  3262-3264?] 

3271.  Bonus    deemed    an    extortionate    rate — Recovery. — Sec. 
107.    It  shall  not  be  lawful  for  any  person  owning,  or  controlling, 
or  claiming  to  own  or  control  any  ditch,  canal  or  reservoir,  car- 
rying or  storing,  or  designed  for  the  carrying  or  storing  of  any 
water  taken  from  any  natural  stream  or  lake  within  this  state, 
to  be  furnished  or  delivered  for  compensation  for  irrigation, 
mining,  milling  or  domestic  purposes,  to  persons  not  interested 
in  such  ownership  or  control,  to  demand,  bargain  for,  accept 
or  receive  from  any  person  who  may  apply  for  water  for  any  of 
the  aforesaid  purposes,  any  money  or  other  valuable  thing  what- 
soever, or  any  promise  or  agreement  therefor,  directly  or  in- 
directly, as  royalty,  bonus,  or  premium  prerequisite  or  condition 


40 

precedent  to  the  right  or  privilege  of  applying,  or  bargaining  for, 
or  procuring  such  water.  But  such  water  shall  be  furnished, 
carried  and  delivered  upon  payment  or  tender  of  the  charges 
fixed  by  the  county  commissioners  of  the  proper  county,  as  is, 
or  may  be,  provided  by  law.  Any  and  all  moneys,  and  every 
valuable  thing,  or  consideration  of  whatsoever  kind,  which  shall 
be  so,  as  aforesaid,  demanded,  charge'd,  bargained  for,  accepted, 
received,  or  retained,  contrary  to  the  provisions  of  this  section, 
shall  be  deemed  and  held  an  additional  and  corrupt  rate,  charge, 
or  consideration  for  the  water  intended  to  be  furnished  and  de- 
livered therefor,  or  because  thereof,  and  wholly  extortionate  and 
illegal;  and  when  paid,  delivered,  or  surrendered,  may  be  recov- 
ered back  by  the  party  paying,  delivering,  or  surrendering  the 
same  from  the  party  to  whom,  or  for  whose  use,  the  same  shall 
have  been  paid,  delivered,  or  surrendered,  together  with  cosis 
of  suit,  including  reasonable  fees  of  attorneys  of  plaintiff,  by 
proper  action  in  any  court  having  jurisdiction.  [L".  'ST.  p. 
308,  §1. 

3272.  Penalty  for  collecting  excessive  rate.— Sec.  108.     Every 
person  owning  or  controlling,  or  claiming  to  own  or  control,  any 
ditch,  canal  or  reservoir,  such  as  is  mentioned  in  the  first  section 
of  this  act,  who  shall,  after  demand  in  writing  made  upon  him 
for  the  supply  or  delivery  of  water  for  irrigation,  mining,  milling 
or  domestic  purposes,  to  be  delivered  from  the  canal,  ditch  or 
reservoir,   owned,  possessed    or    controlled  by  him,  and   after 
tender  of  the  lawful  rate  of  compensation  therefor,  in  lawful 
money,  demand,  require,  bargain  for,  accept,  receive  or  retain 
from  the  party  making  such  application,  any  money  or  other 
thing  of  value,  or  any  promise  or  contract,  or  any  valuable  con- 
sideration whatever,  as  such  royalty,  bonus,  premium,  prerequi- 
site or  condition  precedent,  as  is  by  the  provisions  of  this  said 
first  section  prohibited,  shall  be  deemed  guilty  of  a  misdemeanor, 
and  on  conviction  thereof,  shall  be  punished  by  a  fine  of  not  less 
than  one  hundred  dollars,  nor  more  than  five  thousand  dollars, 
or  imprisonment  for  a  term  not  less  than  three  months  nor 
more  than  one  year,  or  both  such  fine  and  imprisonment,  in  the 
discretion  of  the  court.  [L.  '87,  p.  309,  §2. 

[Section  1  referred  to  above  is  section  3171.] 

3273.  Penalty  for  refusal  to  deliver  water. — Sec.  109.     Every 
person  owning  or  controlling,  or  claiming  to  own  or  control,  any 
ditch,  canal  or  reservoir,  such  as  is  mentioned  in  the  first  section 
of  this  act,  who  shall,  after  demand  in  writing,  made  upon  him 
for  the  supply  or  delivery  of  water  for  irrigation,  mining,  milling 

.  or  domestic  purposes,  to  be  delivered  from  the  canal,  ditch  or 
reservoir,  owned,  possessed  or  controlled  by  him,  and  after 


41 

tender  of  the  lawful  rate  of  compensation  therefor,  in  lawful 
monev.  refuse  to  furnish  or  carry  and  deliver  from  such  ditch, 
canal  or  reservoir,  any  water  so  applied  for,  which  water  can 
or  may  be  by  use  of  reasonable  diligence  in  that  behalf,  and 
within  the  carrying  or  storage  capacity  of  such  ditch,  canal  or 
reservoir,  be  lawfully  furnished  and  delivered,  without  infringe- 
ment of  prior  rights,  shall  be  deemed  guilty  of  a  misdemeanor, 
and  upon  conviction  thereof,  shall  be  punished  by  fine  of  not 
less  than  one  hundred  dollars,  nor  more  than  five  thousand  dol- 
lars, or  imprisonment  for  a  term  of  not  less  than  three  months, 
nor  more  than  one  year,  or  both  such  fine  and  imprisonment,  in 
the  discretion  of  the  court.  [L.  '87,  p.  309,  §3. 

[Section  1  referred  to  above  is   section  3271.] 

[When   ditch   company   must   furnish   water.     Section  992.] 

3274.  Action  when  corporation  refuses  to  deliver  water. — Sec. 
110.    When  any  corporation,  in  defiance  or  by  attempted  evasion 
of  the  provisions  of  this  act,  shall,  after  tender  of  the  compensa- 
tion hereinbefore  provided  for,  refuse  to  deliver  water,  such  as 
is  mentioned  in  the  third  section  of  this  act,  to  any  person  law- 
fully entitled  to  apply  therefor,  it  shall  be  the  duty  of  the  attor- 
ney general,  upon  request  of  the  county  commissioners  of  the 
proper  county,  or  upon  his  otherwise  receiving  due  notice  thereof, 
to  institute  and  prosecute  to  judgment  and  final  determination, 
proceedings  in  quo  warranto,  for  the  forfeiture  of  the  corporate 
rights,   privileges   and   franchises   of  any   such   corporation   so 
offending,  or  by  mandamus  or  other  proper  proceedings  to  com- 
pel it  to  its  duty  in  that  behalf.     [L.  '87,  p.  310,  §4. 

[Section  3  referred  to  above  is  section  3273.] 

3275.  "Person"     defined— Liability.— Sec.     111.     The     word 
"Person,"  as  used  in  this  act,  shall  include  corporations  and 
associations,  and  the  plural  as  well  as  the  singular  number.    And 
every  officer-  of  a  corporation,  or  member  of  an-  association,  or 
co-ownership,  and  every  agent  violating  any  of  the  provisions  of 
this  act,  shall  be  liable  to  restore  the  unlawful  consideration 
extorted,  and  be  punishable  under  the  penal  provisions  of  this 
act,  the  same  as  if  the  thing  done  in  disobedience  to  its  provisions 
were  done  for  his  own  sole  benefit  and  advantage.     [L.  '87,  p. 
310.  85. 


42 


IV.     ADJUDICATION  OF  PRIORITIES. 


A.  PROCEEDINGS   BEFORE    COURT.— 3276-3290. 

B.  PROCEEDINGS  BEFORE  KEFEREE. — 3291-3306. 

C.  APPEALS.— 3307-3312. 

D.  GENERAL  PROVISIONS.— 3313-3320. 


A.     PROCEEDINGS  BEFORE  COURT. 


Section. 

3285.  Copy  of  decree — Authority 

of  commissioner  —  Re- 
cording —  Copy  —  Evi- 
dence. 

3286.  Clerk   publish   n  o  t  i  c  e — 

Copies  posted. 

3287.  Proof  of   publication   and 

posting  copies — E  n  t  r  y 
by  clerk. 

3288.  Notice    served    on    all 

parties — H  o  w  served — 
Notice  by  mail. 

3289.  After    decree    entered    no 

further  publication  re- 
quired  in  subsequent 
proceedings,  unless. 

3290.  Court  number  all  ditches 

and  reservoirs — Number 
appropriations. 


Section. 

3276.  Adjudication  of  irrigation 

priorities  —  Jurisdiction 
of  court. 

3277.  Filing  statement  of  claim 

— Contents. 

3278.  Secretary    of    state   make 

publication  —  Publish- 
er's certificate. 

3279.  Secretary's    certificate  - 

Where  filed— Effect. 

3280.  Adjudication  of  priorities 

other  than  irrigation — 
Petition. 

3281.  Court     number     water 

rights. 

3282.  Protection   of   vested 

rights. 

3283.  Distribution     by     water 

commissioner. 

3284.  Petition    to    adjudicate — 

Order  —  Hearing  —  De- 
cree— C  ertificate  by 
clerk. 

3276.  Adjudication  of  irrigation  priorities — Jurisdiction  of 
courts. — Sec.  112.  For  the  purpose  of  hearing,  adjudicating  and 
settling  all  questions  concerning  the  priority  of  appropriation 
of  water  between  ditch  companies  and  other  owners  of  ditches 
drawing  water  for  irrigation  purposes  from  the  same  stream  or 
its  tributaries  within  the  same  water  district,  and  all  other 
questions  of  law  and  questions  of  right  growing  out  of  or  in 
any  way  involved  or  connected  therewith,  jurisdiction  is  hereby 
vested  exclusively  in  the  district  court  of  the  proper  county; 
but  when  any  water  district  shall  extend  into  two  or  more 
counties,  the  district  court  of  the  county  in  which  the  first  regu- 
lar term  after  the  first  day  of  December  in  each  year  shall 
soonest  occur,  according  to  the  law  then  in  force,  shall  be  the 
proper  court  in  which  the  proceedings  for  said  purpose,  as  here- 


43 

inafter  provided  for,  shall  be  commenced;  but  where  said  pro- 
ceedings shall  be  once  commenced,  by  the  entry  of  an  order 
appointing  a  referee  in  the  manner  and  for  the  purpose  herein- 
after in  this  act  provided,  such  court  shall  thereafter  retain  ex- 
clusive jurisdiction  of  the  whole  subject  until  final  adjudication 
thereof  is  had,  notwithstanding  any  law  to  the  contrary  now  in 
force.  [G.  S.,  §1762;  L.  '79,  p.  99,'  §19. 

[Adjudication  of   priorities  other  than  irrigation.     Section  3280.] 

3277.  Filing   statements  of  claim. — Contents. — Sec.   113.     In 
order  that  all  parties  may  be  protected  in  their  lawful  rights  to 
the  use  of  water  for  irrigation,  every  person,  association  or  cor- 
poration owning  or  claiming  any  interest  in  any  ditch,  canal  or 
reservoir,  within  any  water  district,  shall,  on  or  before  the  first 
day  of  June,  A.  I).  1881,  file  with  the  clerk  of  the  district  court 
having  jurisdiction  of  priority  of  right  to  the  use  of  water  for 
irrigation  in  such  wrater  district,  a  statement  of  claim,  under 
oath,  entitled  of  the  proper  court,  and  in  the  matter  of  priorities 
of  water  rights  in  district  number  — ,  as  the  case  may  be,  which 
statement  shall  contain  the  name  or  names,  together  with  the 
post-office  address  of  the  claimant  or  claimants  claiming  owner- 
ship, as  aforesaid,  of  any  such  ditch,  canal  or  reservoir,  the  name 
thereof  (if  any),  and,  if  without  a  name,  the  owner  or  owners 
shall  choose  and  adopt  a  name,  to  be  therein  stated,  by  which 
such  ditch,  canal  or  reservoir  shall  thereafter  be  known,  the 
description  of  such  ditch,  canal  or  reservoir  as  to  location  of 
headgate,  general  course  of  ditch,  the  name  of  the  natural  stream 
from  which  such  ditch,  canal  or  reservoir  draws  its  supply  of 
water,  the  length,  width,  depth  and  grade  thereof,  as  near  as 
nmy  be,  the  time,  fixing  a  day,  month  and  year  as  the  date  of 
the  appropriation  of  water  by  original  construction,  also  by  any 
enlargement  or  extension,  if  any  such  thereof  may  have  been 
made,  and  the  amount  of  water  claimed  by  or  under  such  con- 
struction, enlargement  or  extension,  and  the  present  capacity 
of  the  ditch  canal  or  feeder  of  reservoir,  and  also  the  number  of 
acres  of  land  lying  under  and  being  or  proposed  to  be  irrigated 
by  water  from  such  ditch,  canal  or  reservoir.     Said  statement 
sliall  be  signed  by  the  proper  party  or  parties.     [G.  S.,  §1763; 
L.  '81,  p.  142,  §1. 

[Claim  must  be  filed  before  party  can  offer  evidence,  see  section  3316.] 

3278.  Secretary  of  state  make  publication — Publisher's  certifi- 
cate.— Sec.   114.     The  secretary  of  state   shall,   without   delay, 
after  the  passage  of  this  act,  cause  a  certified  copy  of  the  foregoing 
section,  giving  the  date  of  the  approval  of  this  act,  to  be  published 
in  one  of  the  public  newspapers  published- in  such  county  in  which 
part  or  portion  of  any  water  district  is  or  shall  be  established 


44 

by  law  at  the  time  of  such  publication;  and  said  section  one 
shall  be  published  as  aforesaid,  once  in  each  and  every  week  con- 
tinuously in  said  paper  until  said  first  day  of  June,  A.  D.  1881, 
and  in  case  in  the  meantime  any  one  of  said  papers  shall  cease 
to  be  published,  then  such  publication  shall  be  made  in  some  other 
paper  in  same  county,  (if  any),  and  on  conclusion  of  such  pub- 
lication such  publisher  of  such  paper  shall  deliver  to  the  secre- 
tary of  state  his  sworn  certificate  of  publication  in  duplicate 
showing  that  such  publication  has  been  made  in  his  paper  in 
compliance  with  the  preceding  section  hereof,  and  stating  the 
first  and  last  day  of  such  publication;  and  he  shall  thereupon 
be  entitled  to  receive  from  the  secretary  of  state  a  certificate  of 
the  amount  due  him  for  such  publication,  on  presentation  of 
which  to  the  auditor  of  state  he  shall  draw  his  warrant  for  the 
amount  in  favor  of  the  holder  on  the  state  treasurer,  who  shall 
pay  the  same  according  to  law.  [G.  S.,  §1764;  L.  '81,  p.  143,  §2. 

[Section  1  referred  to  above  is  section  3277.] 

3279.  Secretary's   certificate— Where   filed— Eifect— Sec.  115. 
The  secretary  of  state  shall  file  one  of  said  duplicate  certificates 
of  publication  with  the  clerk  of  the  district  court  having  juris- 
diction of  priority  of  rights  to  use  of  water  for  irrigation  in  the 
proper  water  district,  certifying  officially  that  such  publication 
therein  mentioned  was  duly  authorized  by  him,  and  said  clerk 
shall  file  the  same  writh  the  statement  of  claim  provided  for  in 
section  one  thereof,  and  such  certificate  of  such  publisher  or  any 
additional  certificate  of  same  publisher  to  same  fact  in  case  of 
loss  of  the  original,  shall  be  proof  of  the  proper  publication  of 
said  section  in  the  paper  therein  mentioned.     Said  secretary  of 
state  shall  also  certify  to  such  clerk  of  the  several  district  courts 
having  jurisdiction  of  said  priorities  of  right  to  use  of  said  water 
for  irrigation  throughout  the  state,  the  names  of  the  newspapers, 
and  of  the  county  in  which  he  caused  such  publication  to  be 
made,  and  that  the  duplicate  certificate  of  publication  of  the 
publisher,  as  herein  required  are  on  file  in  his  office,  and  said 
certificate  shall  be  sufficient  proof  of  the  publication  of  said  sec- 
tion one  hereof,  as  by  this  act  required.     [G.  S.,  §1765;  L.  '81, 
p.  144,  §3. 

[Section   1  referred   to  above  is   section  3277.] 

3280.  Adjudication  of  priorities  other  than  irrigation — Peti- 
tion.— Sec.  116.     That  the  owner  or  owners  of  any  water  rights 
derived   from   any   natural    stream,   water-course   or   any   other 
source,  acquired  by  appropriation  and  used  for  any  beneficial 
purpose  other  than  irrigation,  may  have  his  or  their  right  thereto 
established  and  decreed  by  the  district  court  having  jurisdiction 
of  the  adjudication  of  water  rights  for  irrigation  purposes    in 
the  water  district  in  which  said  water  rights  are  situated,  by 


15 

petitioning  said  court  in  the  same  manner  and  by  complying 
with  the  procedure  and  the  requirements  of  the  law  now  appli- 
cable to  the  adjudication  of  water  rights  for  irrigation  purposes. 
[L.  '03,  p.  297,  §1. 

[Adjudication  of  priorities  for  irrigation.     Section  3276.] 

3281.  Court  number  water  rights. — Sec.  117.     The  said  dis- 
trict court  shall  number,  consecutively  and  chronologically,  tall 
such  water  rights  similar  to  the  system  of  numbering  priorities 
for  irrigation  purposes,  designating  the  amount  of  each  appro- 
priation in  cubic  feet  per  second  of  time;  and  shall  specifically 
state   the  particular  purpose   for   which   said   appropriation   is 
granted,  that  is,  whether  the  same  is  for  power  or  manufactur- 
ing purposes,  domestic  use,  storage  purposes,  or  any  .other  bene- 
ficial use  of  said  waters.     All  of  such  appropriations,  other  than 
appropriations  for  irrigation   purposes,  shall  be  designated  by 
and  in  the  one  series  of  consecutive  numbers  herein  provided  for. 
[L.  '03,  p.  297,  §2. 

3282.  Protection  of  vested  rights. — Sec.  118.     In   determin- 
ing such  water  rights,  it  shall  be  the  duty  of  the  court  to  recog- 
nize and  protect,  as  far  as  possible  under  the  constitution  of  this 
state  and  the  decisions  of  the  appellate  courts  applicable  thereto, 
the  vested  rights  of  all  appropriations  of  water  for  irrigation 
purposes,  especially  where  such  rights  have  been  duly  adjudicat- 
ed by  the  said  court  in  the  statutory  proceeding  for  the  determin- 
ation of  the  priority  of  rights  to  the  use  of  water  for.  irrigation 
purposes.     [L.  '03,  p.  298,  §3. 

3283.  Distribution  by  water  commissioner. — Sec.  119.    It  shall 
be  the  duty  of  the  water  commissioner  in  each  water  district 
to  distribute  the  waters  decreed  hereunder  and  to  protect  the 
priority  rights  of  the  respective  owners  of  water  rights  for  any 
beneficial  purposes  from  and  after  their  determination  by  said 
court,  in  the  same  manner  as  he  is  now  required  by  law  to  super- 
intend the  distribution  of  waters  throughout  his  district  for  irriga- 
tion purposes,  and  he  shall  receive  like  compensation  for  such 
services  from  the  county  in  which  such  water  rights  are  situated ; 
and  other  counties  embraced  in  his  water  district  shall  not  be 
liable  for  any  portion  of  such  service;  Provided,  further,  That 
no  water  commissioner  or  irrigation  official  shall  make  any  di- 
vision or  distribution  of  any  water  between  the  users  thereof 
from  the  same  ditch  or  reservoir.     [L.  '03,  p.  298,  §4. 

3284.  Petition    to    adjudicate — Order — Hearing — tfecree — Cer- 
tificate by  clerk. — Sec.  120.     When,  at  any  time  after  the  first 
day  of  June,  A.  D.  1881,  any  one  or  more  persons,  associations 
or  corporations,  interested  as  owners  of  any  ditch,  canal  or  res- 
ervoir in  any  water  district  shall  present  to  the  district  court 


46 

of  any  county  having  jurisdiction  of  priority  of  rights  to  the  use 
of  water  for  irrigation  in  such  water  district  according  to  the 
provisions  of  an  act  entitled  "An  act  to  regulate  the  use  of  water 
for  irrigation  and  providing  for  settling  the  priority  of  rights 
thereto,  and  for  payment  of  the  expenses  thereof,  and  for  pay- 
ment of  all  costs  and  expenses  incident  to  said  regulation  of 
use$"  or  to  the  judge  thereof  in  vacation,  a  motion,  petition 
or  application  in  writing,  moving  or  praying  said  court  to  pro- 
ceed to  an  adjudication  of  the  priorities  of  rights  to  use  of  water 
for  irrigation  between  the  several  ditches,  canals  and  reservoirs 
in  such  districts,  the  court,  or  judge  thereof  in  vacation  shall, 
without  unnecessary  delay,  in  case  he  shall  deem  it  practicable 
to  proceed  in  open  court,  as  prayed  for,  by  an  order  to  be  entered 
of  record  upon  such  motion,  petition  or  application,  appoint 
a  day,  in  some  regular  or  special  term  of  said  court,  for  com- 
mencing to  hear  and  take  evidence  in  such  adjudication,  at  which 
time  it  shall  be  the  duty  of  the  court  to  proceed  to  hear  all  evi- 
dence which  may  be  offered  by  or  on  behalf  of  any  person,  as- 
sociation or  corporation,  interested  in  any  ditch,  canal  or  reser- 
voir, in  such  district,  either  as  owner  or  consumer  of  water 
therefrom  in  support  of  or  against  any  claim  or  claims  or  prior- 
ity of  appropriation  of  water  made  by  means  of  any  ditch,  canal 
or  reservoir,  or  by  any  enlargement  or  extension  thereof  in 
such  district,  and  consider  all  such  evidence,  together  with  any 
and  all  evidence,  if  any,  which  may  have  been  heretofore  offered 
and  taken  in  such  district  in  the  same  matter  by  any  referee 
heretofore  appointed  under  the  provisions  of  said  act  above  here- 
in mentioned,  and  also  the  arguments  of  parties  or  their  counsel, 
and  shall  ascertain  and  find  from  such,  evidence,  as  near  as  may 
be,  the  date  of  the  commencement  of  such  ditch,  canal  or  reser- 
voir, together  with  the  original  size  and  carrying  capacity  there- 
of as  originally  constructed,  the  time  of  the  commencement  of 
each  enlargement  or  extension  thereof,  if  any,  with  the  increased 
capacity  thereby  occasioned,  the  time  spent,  severally,  in  such 
construction  and  enlargement,  or  extension,  and  re-enlargement, 
if  any,  the  diligence  with  which  the  work  was  in  each  case  prose- 
cuted, the  nature  of  the  work  as  to  difficulty  of  construction,  and 
all  such  other  facts  as  may  tend  to  show  the  compliance  with  the 
law,  in  acquiring  the  priority  of  right  claimed  for  each  such  ditch, 
canal  or  reservoir,  and  determine  the  matters  put  in  evidence, 
and  make*and  cause  to  be  entered  a  decree  determining  and  es- 
tablishing the  several  priorities  of  right,  by  appropriation  of 
water,  of  the  several  ditches,  canals  and  reservoirs  in  such  water 
district,  concerning  which  testimony  shall  have  been  offered,  each 
according  to  the  time  of  its  said  construction  and  enlargement, 
or  enlargements  or  extensions,  with  the  amount  of  water  which 


shall  be  held  to  have  been  appropriated  by  such  co 
enlargements,  or  extensions,  describing  such  am 
feet  per  second  of  time,  if  the  evidence  shall  sho\v 


istruction  and 
>un^  ,by  .cubic 
-  <kta 


to  ascertain  such  cubic  feet,  and  if  not,  by  width,  depth  and 
grade  and  such  other  description  as  will  most  certainly  and  con- 
veniently show  the  amount  of  water  intended  as  the  capacity  of 
such  ditch ,  canal  or  reservoir,  in  such  decree.  Said  court  shall* 
further  order  that  each  and  every  party  interested  or  claiming 
any  such  ditch,  canal  or  reservoir,  shall  receive  from  the  clerk, 
on  payment  of  a  reasonable  fee  therefor,  to  be  fixed  by  the 
court,  a  certificate  under  seal  of  the  court  showing  the  date 
or  dates  and  amount  or  amounts  of  appropriations  adjudged 
in  favor  of  such  ditch,  canal  or  reservoir,  under  and  by  virtue 
of  the  construction,  extension  and  enlargements  thereof,  several- 
ly; also  specifying  the  number  of  said  ditch  and  of  each  priority 
to  which  the  same  may  be.  entitled  by  reason  of  such  construc- 
tion, extension  and  enlargements.  [G.  S.,  §1,767;  L.  '81,  p. 
144,  §4. 

[The  act  above  referred  to  is  found  L.   '79,  p.  95-108.] 

3285.  Copy  of  decree — Authority  of  commissioner — Recording 
— Copy — Evidence. — Sec.  121.    The  holder  of  such  certificate  shall 
exhibit  the  same  to  the  water  commissioner  of  the  district  when 
he  commences  the  exercise  of  his  duties,  and  such  water  com- 
missioner shall  keep  a  book  in  which  shall  be  entered  a  brief 
statement  of  the  contents  of  such  certificate,  and  which  shall 
be  delivered  to  his  successor,  and  said  certificate,  or  statement 
thereof,  in  his  book,  shall  be  the  warrant  of  authority  to  said 
water  commissioner  for  regulating  the  flow  of  water  in  rela- 
tion to  such  ditch,  canal  or  reservoir.     Said  certificate  shall  be 
recorded,  at  the  same  rates  of  charges  as  in  cases  of  deeds  of 
conveyance,  in  the  records  of  each  county  into  which  the  ditch, 
canal  or  reservoir,  to  which  such  certificate  relates,  shall  ex- 
tend; and  said  certificate,  or  said  record  thereof,  or  a  duly  cer- 
tified copy  of  such  record,  shall  be  prima  facie  evidence  of  so 
much  of  said  decree  as  shall  be  recited  therein,  in  any  suit  or 
proceeding  in  which  the  same  may  be  relevant.     [G.  S.,  §1767; 
L.  '81,  p.  146,  §5. 

3286.  Clerk  publish  notice — Copies  posted. — Sec.  122.     Notice 
shall  be  given  by  the  clerk  of  said  court,  of  the  time  so  ap- 
pointed,  by  publishing  the  same  in   one  public  newspaper  in 
such  county  into  which  such  water  district  may  extend;  which 
notice  shall  be  so  published  in  such  paper  once  in  each  week 
until  four  successive  weekly  publications  shall  have  been  made, 
the  last  of  which  shall  be  on  a  day  previous  to  the  day  ap- 
pointed as  aforesaid.     Said  notice  shall  contain  a  copy  of  said 


48 

order,  and  shall  notify  all  persons,  associations  and  corporations 
interested  as  owners  in  any  ditch,  canal  or  reservoir  in  such 
water  district,  to  appear  at  said  court  at  the  time  so  appointed 
and  file  a  statement  of  claim  under  oath,  in  case  no  statement 
has  been  before  filed  by  him,  her  or  them,  showing  the  ditch, 
canal  or  reservoir,  or  two  or  more  such,  in  which  he,  she  or 
they  claim  an  interest,  together  with  the  names  of  all  the 
owners  thereof,  which  statement  may  be  made  by  any  one  of 
the  owners  of  such  ditch,  canal  or  reservoir  for-  and  in  behalf 
of  all;  and  also  that  all  persons  interested  as  owners  or  con- 
sumers may  then  and  there  present  his,  her  or  their  proofs  for 
or  against  any  priority  of  right  of  water  by  appropriation 
sought  to  be  shown  by  any  party  by  or  through  any  such  ditch, 
canal  or  reservoir,  (either  as  owner  or  consumer  of  water  drawn 
therefrom).  Ten  printed  copies  of  said  notice  shall  also  be 
posted  in  ten  public  places  in  such  water  district,  not  less  than 
twenty  days  before  the  day  so  appointed,  which  copies  shall 
be  so  posted  by  the  party  or  parties  moving  the  adjudication. 
[G.  S.,  §1768;  L.  '81,  p.  147,  §6. 

3287.  Proof  of  publication  and  posting  copies — Entry  by  clerk. 
Sec.  123.     Proof  of  the  proper  publication  of  said. notice  or  no- 
tices  in  said  public   papers   shall   consist   in   such   case  of  the 
sworn  certificate  of  the  'publisher  of  such  newspaper,  showing 
the  publication  to  have  been  made  in  accordance  with  the  pro- 
visions of  section  three  of  this  act,  which  certificate  shall  be 
procured  by  the  party  or  parties  moving  the  adjudication,  at 
his   or   their  expense,    and   on    said    certificate   being   filed    the 
clerk  shall  enter  the   amount  of  the   printer's  fee  tnerefor  as 
costs  advanced   by  the  party  procuring  the  same,   which  sum 
shall  be  counted  to  his,  her  or  their  credit  in  distribution   of 
costs.    Proof  of  the  posting  of  said  printed  copies  shall  be  made 
by  the  affidavit  of  some  credible  person,  certified  to  be  such  by 
the  clerk  or  other  officer  administering  the  oath,  showing  when, 
where  and  how  said  copies  were  posted.     [G.  S.,  §1769;  L.  '81, 
p.  147,  §7. 

[Section  3  referred  to  above  is  section  3282.] 

3288.  Notices  served  on  all  parties — How  served — Notice  by 
mail. — Sec.  124.    The  party  or  parties  moving  such  adjudication 
shall  cause  a  printed  or  written  copy  of  the  notice  aforesaid, 
published  as  aforesaid,  to  be  served  on  every  person,   associa- 
tion or  corporation  shown   by  the  statement  of  claim  on   file, 
as  provided  in  section  one  hereof,  which  service  shall  be  made 
within  ten  days  from  the  time  of  the  first  publication  by  the 
clerk,  by  any  credible  person  certified  by  said  clerk  or  referee 
to  be  -such,  by  delivering  such  copy  as  aforesaid  to  the  person 


to  be  served,  if  such  person,  by  due  diligence,  can  be  found  in 
the  county  of  his  residence.  If  such  person  can  not  be  found, 
as  aforesaid,  then  by  leaving  such  copy  at  his  or  her  usual  place 
of  residence,  if  he  or  she  have  such  residence,  in  charge  of  some 
person  of  the  age  of  fourteen  years  or  over,  there  residing;  and 
on  any  corporation,  by  delivering  the  copy  to  the  president,  or 
vice-president,  or  secretary,  or  treasurer  thereof,  or  the  man- 
ager, or  superintendent  in  charge  of  their  ditch,  canal  or  reser- 
voir, or  authorized  agent  or  attorney,  or  by  leaving  such  copy 
at  the  office  or  usual  place  of  business  of  such  corporation,  and 
the  proof  of  such  service  shall  be  made  by  affidavit  of  the  per- 
son or  persons  serving  said  copies,  showing  when  and  how  such 
service  has  bean  made  on  such  party.  In  case  of  parties  not 
served  in  any  manner  as  aforesaid,  the  clerk  shall  deposit  in 
the  postoffice,  duly  enclosed  in  an  envelope  with  the  proper 
postage  stamp  thereon,  a  copy  directed  to  the  address  of  such 
party,  shown  in  the  statement  of  claim  aforesaid,  filed  by  him 
or  her  under  section  one  hereof.  [G.  S.,  §1770;  L.*  '81,  p.  148,  §8. 

[Section  1  referred  to  above  is  section  3277.] 

3289.  After  decree  entered  no  further  publication  required  in 
subsequent  proceedings,  unless. — Sec.  125.  That  in  all  water  right 
adjudication  proceedings  brought  under  the  statutes  of  this 
state  for  determining  and  decreeing  priority  rights  to  the  use 
of  water  for  irrigation  or  any  other  beneficial  purpose,  or  for 
the  transfer  of  an  adjudicated  water  right,  after  a  general 
decree  has  been  entered  in  such  water  district,  in  pursuance  of 
the  statutory  notice  by  publication  and  posting,  as  now  required 
by  law,  no  further  publication  or  posting  of  such  notice  or  any 
notice  of  such  individual  subsequent  proceedings  shall  be  re- 
quired unless  by  order  of  court  upon  good  cause  shown  there- 
for; and  in  all  such  proceedings  subsequent  to  the  entry  of 
such  general  decree,  written  notice  shall  be  given  for  such 
length  of  time  and  be  served  upon  the  pa'rties  interested  ad- 
versely in  such  manner  as  is  now  or  may  hereafter  be  provided 
by  law  for  the  service  of  summons  in  other  civil  cases;  or  in 
such  reasonable  time  and  manner  as  may  be  fixed  by  rule  of 
court;  Provided,  Such  notice  shall  contain  the  date  and  amount 
of  the  priority  right  claimed  in  each  case,  the  source  of  supply 
from  which  same  shall  be  taken,  and  in  case  of  a  transfer  of  a 
water  right  the  notice  shall  contain  a  brief  description  of  the 
water  right  sought  to  be  transferred, .  the  place  and  ditch,  if 
any,  from  which  and  to  which  the  change  is  desired,  and  which 
notice  shall  give  the  date  that  the  hearing  will  be  had,  and 
be  served  not  less  than  fifteen  days  prior  to  the  date  of  such 
hearing;  and  which  notice  shall  be  dated  and  may  be  signed 


50 

and  issued  either  by  the  attorney  for  the  petitioner  or  by  the 
clerk  of  the  district  court.  This  act  shall  not  be  construed  as 
a  repeal  of  any  of  the  statutes  now  existing  relative  to  notice 
in  any  water  right  proceedings;  and  in  any  proceedings  for  any 
of  the  purposes  herein  set  forth  the  petitioner  may,  at  his  elec- 
tion, proceed  under  this  act,  or  under  the  statutes  in  force  at 
the  time  of  the  passage  of  this  act.  [L.  '05,  p.  244,  §1. 

[For  service  of  summons  see  Code,  section  40,  p.  81.] 

3290.  Court  number  all  ditches — Reservoirs — Number  appro- 
priations.— Sec.  126.  The  court,  in  making  such  decree,  as  afore- 
said, shall  number  the  several  ditches  and  canals  in  the  water 
district,  concerning  which  adjudication  is  made,  in  consecutive 
order,  according  to  priority  of  appropriation  of  water  thereby 
made  by  the  original  construction  thereof,  as  near  as  may  be, 
having  reference  to  the  date  of  each  decree  as  rendered,  and 
shall  also  number  the  reservoirs  in  like  manner,  separately  from 
ditches  and  canals,  and  shall  further  number  each  several  ap- 
propriations of  water  consecutively,  beginning  with  the  oldest 
appropriation,  without  respect  to  the  ditches  or  reservoirs  by 
means  of  which  such  appropriations  were  made;  whether  such 
appropriation  shall  have  been  made  by  means  of  construction, 
extension  or  enlargement,  which,  number  of  each  ditch,  canal 
or  reservoir,  together  with  the  number  or  numbers  of  any  appro- 
priations of  water  held  to  have  been  made  by  means  of  the 
construction,  extension  or  enlargement  thereof,  shall  be  incor- 
porated in  said  decree  and  certificate  of  the  clerk,  to  be  issued 
to  the  claimants,  as  provided  in  section  one  of  this  act,  so  as 
to  show  the  order  in  priority  of  such  ditch  or  canal,  and  of 
such  reservoir,  and  also  of  such  successive  appropriation  of 
water  pertaining  thereto,  for  the  information  of  the  water  com- 
missioner of  the  district  in  distributing  water;  such  numbering 
to  be  as  near  as  may  be  having  reference  to  date  of  decrees 
as  rendered.  [G.  S.,  §1771;  L.  '81,  p.  149,  §9. 

[Section  1  referred  to  is  section  3277.] 


51 


B.  PROCEEDINGS  BEFORE  REFEREE. 


Section. 
3291.     When 


3292. 


3293. 
3294. 
3295. 

3296. 


3297. 


court  may  appoint, 
referee — What  referred. 

Referee's  n  o  t  i  c  e — Con- 
tents  —  Publication — 
Posting  copies. 

Proof  of  posting  notices. 

Who  may  offer  evidence. 

When  former  evidence 
may  be  used. 

Powers  and  duties  of  ref- 
eree— B  o  o  k  s  and  rec- 
ords, evidence. 

Refusal  to  produce  books 
or  papers — Effect. 


Section. 
3300'. 


3298.  What   facts   to   be   ascer- 

tained by  proofs. 

3299.  Contempt   before   referee. 


Compensation    of   referee 
— How     paid — Accounts. 

3301.  Fees    of    witnesses— By 

whom  paid. 

3302.  Duties  of  referee— Rights 

of  parties — Adjournment 
— Notice. 

3303.  Rights  of  parties  against 

referee  for  neglect,  op- 
pression, etc. 

3304.  Report     of    referee — Con- 

tents. 

3305.  Filing   report — Court  pro- 

ceed to  determine — Ex- 
ceptions —  Approval  — 
Entry. 

3306.  Court  may  dismiss  referee 

— V  a  c  a  n  c  y — New  ap- 
pointment. 

3291.  When  court  may  appoint  referee — What  referred. — Sec. 
127.     If  for  an}-    cause  the  judge  of  said  court  shall  deem  it 
impracticable  or  inexpedient  to  proceed  to  hear  such  evidence 
in  open  court,  he  shall,  instead  of  the  order  mentioned  in  sec- 
tion four  of  this  act,  make  and  cause  to  be  entered  of  record 
an  order  appointing  some  discreet  person,  properly  qualified,  a 
referee  of  said  court,  to  whom  shall  be  referred  the  statement 
of  claim  aforesaid  on  file  in  said  matter,  the  matter  of  taking 
evidence  and  reporting  the  same,  making  an  abstract  and  find 
ings  upon  the  same,  and  preparing  a  decree  in  said  adjudica- 
tion; and  also  in  case  of  any  water  district  in  which  a  referee 
has  been  heretofore  appointed,  and  evidence  taken  by  him  under 
the  provisions  of  the  act,  the  title  of  which  is  recited  in  section 
four  of  this  act;  such  evidence  so  already  taken,  together  with 
the  abstract  thereof,  and  report  of  the  referee  who  took  the 
same,   shall  be  also  referred  to  said  referee,  to  be  appointed 
:j.s  aforesaid,  and  he  shall  proceed  with  his  duties  as  hereinafter 
provided,  first  taking  an  oath  of  office,  such  as  is  required  to 
be  taken  by  referees  in  other  cases  under  the  provisions  of  the 
code  of  civil  procedure.     [(>.  S.,  §1772;  L.  '81,  p.  149,  §10. 

[Section  4  above  referred  to  is  section  3284.] 
[For  oath  of  referee  see  Code  section  224,  p.  117.] 

3292.  Referee's  notice — Contents — Publication — Posting  copies. 
—Sec.   1.2S.     Said   referee   shall  prepare  and  .publish  a  notice 
containing  a  copy  of  the  order  appointing  him,  in  which  notice 
he  shall  appoint  a  time  or  times,  and  place  or  places,  suitable 
and    convenient   for   the   claimants   in    such   water   district,   at 
which   he  will   attend   for   the   purpose   of  hearing   and  taking 


52 

evidence  touching  the  priority  of  right  of  the  several  ditches, 
canals  and  reservoirs  in  said  district  and  notifying  all  persons, 
associations  and  corporations  interested  as  owners  or  consumers 
of  water  to  attend  by  themselves,  their  agents  or  attorneys,  at 
the  times  and  places  appointed  in  said  notice,  and  notifying 
such  owners  to  then  and  there  file  a  statement  of  claim  in  case 
such  statement  has  not  been  already  filed  under  the  provisions  of 
section  one  hereof,  such  as  mentioned  in  section  six  hereof,  and 
present  their  proofs  touching  any  priority  of  right  claimed  by 
them  for  any  ditch,  canal  or  reservoir  in  said  district,  which 
notice  shall  be  published  in  the  same  manner  and  times,  and 
in  all  respects  according  to  the  provisions  for  publication  of 
the  newspaper  notices  mentioned  in  section  six  of  this  act,  and 
proof  of  such  publication  shall  be  made  in  same  manner  as  is 
provided  in  section  seven  of  this  act;  and  he  shall  also  post 
ten  or  more  printed  copies  of  such  notice  in  ten  or  more  public- 
places  in  said  district,  which  copies  shall  be  so  posted  at  least 
twenty  days  before  the  time  of  commencing  to  take  said  evi- 
dence. [G.  S.,  §1773;  L.  '81,  p.  150,  §11. 

[Section  6  above  referred  to  is  section  32S6.] 
[Section  1  referred  to  is  section *3277.] 
[Section  7  referred  to  is  section  32S7.] 

3293.  Proof  of  posting  notices. — Sec.  129.     Proof  of  the  post- 
ing of  said  copies  shall  be  made  by  the  affidavit  of  said  referee 
or  other  person  certified  by  him  to  be  a  credible  witness,  which 
shall  show  when,  where  and  howT  the  said  copies  were  posted, 
and  shall  be  filed  by  him  with  his  report.     [G.  S.,  §1774;  L.  '81, 
p.  151,  §12. 

3294.  Who  may  offer  evidence. — Sec.  130.     Said  referee  shall 
altend  at  the  times  and  places  mentioned  in  his  notice  for  the 
purpose     therein    mentioned;    and    all    persons,    associations, 
choosing  to  do  so,  and  being  interested  as  owners  of  or  con- 
sumers of  water  from  any  ditch,  canal  or  reservoir  in  said  dis- 
trict,   and    may    also    attend    by    themselves,    their    agents    or 
attorneys,  before  said  referee,  at  some  one  or  more  of  said  times 
and  places  so  appointed,  and  shall  have  right  to  offer  any  and 
all   evidence  they  may  think   advisable  for   their   interests   in 
the  matter  to  be  adjudicated,  as  well  in  districts  in  which  evi- 
dence has  been  heretofore  taken  as  in  other  districts.   All  such 
evidence  as  has  been  heretofore  taken,  if  an}7,  in  such  district, 
shall  be  kept  present  by  said  referee,  subject  to  inspection  by 
any  party  desiring  to  examine  the  same  for  purposes  of  the 
investigation.     [G.  S.,  §1775,  L.  '81,  p.  151,  §13. 

[Claim  must  be  filed  before  party  can  offer  evidence.     Section  3316.] 

3295.  When  former  evidence  may  be  used. — Sec.  131.     When- 
ever testimonv  shall  or  mav  be  taken,  in  anv  district  created 


53 

by  this  act,  for  the  purpose  of  procuring  decree  as  to  appro- 
priation of  water,  and  priorities  thereof,  under  the  statutes 
of  this  state,  any  testimony  theretofore  taken,  before  any  for- 
mer referee,  may  be  introduced  and  shall  bt  received  as  evi- 
dence. [L.  'So,  p.  259,  §28. 

3296.  Powers  and  duties  of  referee — Books  and  records,  evi- 
dence.-— Sec.  132.     Said  referee  shall  have  power  to  administer 
oaths  to  all  witnesses,  and  to  issue  subpoenas  for  witnesses  and 
subprenas  duces  tecimi,  which  subpoenas  may  be  served  by  any 
party,  or  constable,  or  sheriff,  or  deputy  sheriff,  and  may  re- 
(juire  witnesses  to  appear  at  any  of  the  places  appointed  by  said 
referee  for  taking  evidence.     He  shall  permit  all  witnesses  to 
be  examined  by  the  parties  calling  them  respectively  and  to 
be   cross-examined  by  any  party  interested,  and  he  shall  take 
all  testimony  in  writing  and  note  all  objections  offered  to  any 
part  of  the  testimony  taken,  with  the  cause  assigned  for  the 
objection,  and  shall  proceed  in  all   other  respects  as  in   case 
ol!  taking  depositions.     He  shall  certify  all  books  and  papers 
offered  by  any  one  in  his  own  behalf,  and  preserve  them  with 
the  testimony  offered  concerning  the  same,  and  in  case  of  books 
and  papers  offered  in  eA'idence,  which  shall  not  be  under  the 
control  of  the  party  desiring  the  evidence  for  which  such  books 
may  be  offered,  said  referee  shall  make  a  true  copy  of  the  parts 
demanded  and  certify  the  same,  and  preserve  the  same,  together 
with  the  evidence  offered  concerning  the  same  and  concerning 
said  books  and  papers,  as  part  of  the  evidence  in  the  matter, 
[G.  S.,  §1776;  L.  '81,  p.  151,  §14. 

3297.  Refusal  to  produce  books  or  papers — Effect. — Sec.  133. 
No  person,  association  or  corporation  wilfully  refusing  to  pro- 
duce any  book  or  paper,  if  in  his  or  their  power  to  do  so,  when 
rightfully  demanded  for  examination  and  copying,  shall  be  al- 
lowed the  benefit   of  any  testimony  or  proofs  in  his,  her  or 
their  behalf,  in  making  final  adjudication,  if  the  court  shall  be 
satisfied,  from  all  the  evidence  shown  concerning  such  refusal, 
that  the  same  was  wilful.     [G.  S.,  §1777;  L.  '81,  p.  152,  §15. 

3298.  What  facts  to  be  ascertained  by  proofs.— Sec.  134.    Said 
referee  shall  also  examine  all  witnesses  to  his  own  satisfaction, 
touching  any  point  involved  in  the  matter  in  question,  and  shall 
ascertain  as  far  as  possible  the  date  of  the  commencement  oi 
each  ditch,  canal  or  reservoir,  with  the  original  size  and  carry- 
ing capacity  thereof,  the  time  of  the  commencement  of  each 
enlargement  thereof,  with  the  increased  carrying  capacity  there- 
by occasioned,  the  length  of  time  spent  in  such  construction  or 
enlargement,   the   diligence   with    which   the   work   was   prose- 


54 

cuted,  the  nature  of  the  work  as  to  difficulty  of  construction, 
i>nd  all  such  other  facts  as  may  tend  to  show  compliance  with 
the  law  in  acquiring  the  priority  of  right  claimed  for  such  ditch, 
canal  or  reservoir;  and  upon  all  the  facts  so  obtained  shall  be 
determined  the  relative  priorities  among  the  several  ditches, 
canals  and  reservoirs,  the  volume  or  amount  of  water  lawfully 
appropriated  by  each,  as  well  as  by  means  of  the  construction, 
as  by  the  enlargements  thereof,  and  the  time  when  each  such 
several  appropriations  took  effect.  [G.  S.,  §1778;  L.  '81,  p. 
152,  §16. 

3299.  Contempt    before    referee. — Sec.    135.     Every    person 
present  before  said  referee  at  any  time  when  he  shall  be  en- 
gaged  in    hearing   testimony,    who    shall    wilfully   disturb    the 
proceedings;  and  every  person  who  shall  wilfully  refuse  or  neg- 
lect to  obey  any  subpoena  issued  by  said  referee,  when  his  lawful 
fees  shall  be  tendered  him  for  his  attendance  before  the  referee, 
shall  be  guilty  of  contempt  of  court  appointing  such  referee, 
and  on  complaint,  under  oath  of  the  referee  or  other  person, 
before  the  said  district  court,  or  judge  thereof  in  vacation,  may 
be  brought  before  the  court  or  judge  and  dealt  with  accordingly, 
[G.  S.,  §1779;  L.  '81,  p.  152,  §17. 

3300.  Compensation    of    referee — How    paid — Accounts. — Sec. 
136.     The  referee  appointed  in  this  act  shall  be  paid  the  sum  of 
six  dollars  per  day  while  engaged  in  discharging  his  duties  as 
herein  provided,  and  also  his  reasonable  and  necessary  expenses 
and  mileage  at  the  rate  of  ten  cents  for  each  mile  actually  and 
necessarily  traveled  by  him  in  going  and  coming  in  the  discharge 
of  his  duties  as  such  referee,  which  said  per  diem  allowance,  ex- 
penses and  mileage  shall  be  paid  out  of  the  treasury  of  the  county 
in  which  such  water  district  shall  lie,  if  it  be  contained  in  one 
county,  and  if  such  water  district  shall  extend  into  two  or  more 
counties,  then  in  equal  parts  thereof,  shall  be  paid  out  of  the 
treasury  of  such  county  into  which  such  district  shall  extend. 
He  shall  keep  a  just  and  true  account  of  his  services,  expenses 
and  mileage  and  present  the  same  from  time  to  time  to  the  district 
court,  or  judge  in  vacation  verifying  the  same  by  oath,  and  the 
judge,  if  he  find  the  same  correct  and  just,  shall  certify  his  ap- 
proval thereof  thereon,  and  the  same  shall  thereupon  be  allowed 
by  the  board  of  county  commissioners  of  the  county  in  which  said 
water  district  shall  lie,  but  if  said  water  district  extend  into  two 
or  more  counties,  he  shall  receive  from  the  clerk  of  the  district 
court  separate  certificates,  under  seal  of  the  court,  showing  the 
amount  due  him  from  each  county,  upon  which  certificate  the 
board  of  county  commissioners  of  the  respective  counties  shall 


allow  the  same  on  presentation  thereof.     [G.  S.,  §1798;  L.  '81, 
p.  160,  §36. 

3301.  Fees  of  witnesses — By  whom  paid. — Sec.  137.     Every 
witness  who  shall  attend  before  said  referee  under  subpoena  by 
request  of  any  party,  shall  be  entitled  to  the  same  fees  and  mile- 
age as  witnesses  before  the  district  court  in  the  county  in  which 
he  shall  so  attend,  and  shall  be  paid  by  the  party  requiring  his 
testimony.     [G.  &.,  §178.0;  L.  '81,  p.  153;  §18. 

[For  fees  and  mileage  of  witnesses,  see  sections  2542  and  2543.] 

3302.  Duties   of   referee — Eights   of   parties — Adjournment — 
Notice. — Sec.  138.    The  said  referee  shall  take  all  the  testimony 
offered,  and  for  that  purpose  shall  give  reasonable  opportunity 
to  all  parties  to  be  heard,  and  may  at  any  place,  when  the  time 
limited  thereat  shall  expire,  adjourn  the  further  taking  of  testi- 
mony then  proposed  or  desired  to  be  offered  to  the  next  place  in 
order,  according  to  his  said  published  appointments,  and  at  the 
last  place  may  continue  until  all  testimony  shall  be  taken,  or 
make  further  appointments  at  any  former  place  or  places  as  may 
seem  best  and  most  convenient  for  all  parties,  giving  reasonable 
notice  thereof.     [G.  S.,  £1781;  L.  '81,  p.  153,  §19. 

3303.  Rights  of  parties  against  referee  for  neglect,  oppression, 
etc. — Sec.  139.     Every  party  interested  shall  have  the  right  to 
complain  to  the  court  of  any  act  of  wilful  neglect  or  oppression 
on  the  part  of  the  said  referee  in  exercising  his  powers  under  this 
act,  whereby  such  party  shall  have  been  aggrieved,  either  by  re- 
fusal of  said  referee  to  hear  or  take  evidence  offered,  or  by  pre- 
venting reasonable  opportunity  to  offer  such  evidence;  and  the 
court  may  order  such  proceedings  in  the  premises  as  will  give 
redress  of  the  grievance,  at  the  cost  of  said  referee,  if  he  appear 
wilfully  in  fault;  otherwise,  in  case  of  accident  or  mistake,  costs 
shall  be  awarded  as  to  the  court  shall  seem  just.     [G.  S.,  §1785; 
L.  '81,  p.  155,  §23. 

3304.  Eeport  of  referee — Contents. — Sec.  140.     Said  referee, 
upon  closing  the  testimony,  shall  proceed  to  carefully  examine 
the  same,  together  with  all  testimony  and  proofs  which  may  have 
been  heretofore  taken  by  any  former  referee  in  the  same  district, 
if  any  such  shall  have  been  taken,  under  the  provisions  of  said  act, 
the  title  of  which  is  recited  in  section  four  of  this  act;  he  shall 
make  an  abstract  of  all  the  testimony  and  proofs  in  his  posses- 
sion, concerning  each  ditch,  canal  and  reservoir  separately,  and 
shall  number  each  ditch  and  canal  in  order,  and  likewise  each 
reservoir,  each  class  consecutively,  and  also  number  the  several 
appropriations  of  water  shown  by  the  evidence,  all  in  manner 
and  form  as  provided  in  section  nine  hereof,  and  shall  make  a 
separate  finding  of  all  the  facts  connected  with  each  ditch,  canal 


56 

and  reservoir,  touching  which  evidence  shall  have  been  offered; 
and  he  shall  prepare  a  draft  of  a  decree  in  accordance  with  his 
said  findings,  in  substance  the  same  as  the  decree  mentioned  in 
section  four  of  this  act,  and  conformable  also  to  the  provisions 
of  section  nine  hereof,  so  far  as  the  same  are  applicable;  which 
decree,  so  prepared  by  him,  shall  be  returned  with  his  report  to 
the  court,  and  he  shall  file  his  report  with  said  evidence,  abstract 
and  findings,  and  said  decree,  with  the  clerk  of  the  court,  and 
inform  the  judge  of  so  doing,  without  cfelay.  [G.  S.,  §1782;  L. 
'81,  p.  153,  §20. 

[Sections  4  and  9  referred  to  above  are  sections  3284  and  3290.] 

3305.  Filing  report — Court  proceed  to  determine — Exceptions 
— Approval — Entry. — Sec.  141.    Upon  the  filing  of  said  report  the 
court,  or  judge  thereof  in  vacation,  shall  cause  an  order  to  be 
entered  setting  some  day  in  a  regular  or  special  term  of  said  court 
as  soon  as  practicable,  when  the  court  will  proceed  to  hear  and 
determine  the  report;  at  which  time  any  party  interested  may 
appear  by  himself  or  counsel  and  move  exceptions  to  any  matter 
in  the  findings  or  decree  made  by  said  referee,  and  after  hearing 
the  same  the  court  shall,  if  the  decree  reported  be  approved,  cause 
the  same  to  be  entered  of  record,  or  otherwise  such  modifications 
thereof  or  other  decree  as  shall  be  found  just  and  conformable 
to  the  evidence  and  the  true  intent  of  this  act,  and  to  so  much  of 
any  and  all  former  laws  of  the  state  as  shall  be  adjudged  con- 
sistent herewith.     [G.  S.,  §1783;  L.  '81,  p.  154,  §21. 

3306.  Court  may  dismiss  referee — Vacancy — New  appointment. 
— Sec.  142.     The  district  court,  or  judge  thereof  in  vacation,  in 
case  of  the  death,  resignation,  illness,  absence  or  other  disability 
of  the  referee  hereby  provided  for,  or  for  any  misconduct  in  him, 
or  other  good  cause  to  such  judge  appearing,  shall  appoint  such 
other  properly  qualified  person  in  his  stead  as  he  shall  deem 
proper,  who  shall  proceed  without  delay  to  perform  all  the  duties 
of  his  office,  as  herein  pointed  out,  which  shall  remain  unper- 
formed by  his  predecessor  in  office.     [G.  S.,  §1795;  L.  '81,  p.  159, 
§33. 


'C.     APPEALS. 

Section.  Section. 

3307.  Who    may    appeal— State-  3310.     Transcript  to  be   filed  in 

m  e  n  t  —  A  p  p  r  o  v  a  1—  six  months— Bill  of   ex- 

Order — Bond.  ceptions. 

3308.  Copy  of  order  served  on  3311.     Costs  in  supreme  court. 

appellees  —  Publication  3312.  Supreme  court  amend  or 
and  posting  c  o  p  i  e  s —  make  new  decree  or  re- 
Proof,  mand. 

3309.  Proof  of  service  of  notice 

— Supreme    court    make 
rules. 

3307.  Who  may  appeal — Statement — Approval — Order — Bond. 
— Sec.  143.  Any  party  or  parties  representing  any  ditch,  canal 
or  reservoir,  or  any  number  of  parties  representing  two  or  more 
ditches,  canals  or  reservoirs,  which  are  affected  in  common  with 
each  other  by  any  portion  of  such  decree.,  by  which  he  or  she  or 
they  may  feel  aggrieved,  may  have  an  appeal  from  said  district 
court  to  the  supreme  court,  and  in  such  case  the  party  or  parties 
joining,  desiring  an  appeal,  shall  be  the  appellants,  and  the  par- 
ties representing  any  one  or  more  ditches,  canals  or  reservoirs 
affecting  in  common  adversely  to  the  interests  of  appellants  shall 
be  the  appellees.  The  party  or  parties  joining  in  such  appeal 
shall  file  a  statement  in  writing,  verified  by  affidavit  properly 
entitled  in  such  cause  in  the  district  court,  which  statement  shall 
show  that  the  appellants  claim  a  valuable  interest  in  the  ditch, 
canal  or  reservoir,  or  two  or  more  of  such,  which  are  affected  in 
common  with  each  other  by  some  portion  of  said  decree,  also 
stating  the  name  or  names,  or  otherwise,  the  description  of  the 
same,  and  the  name  or  names,  or  otherwise  the  description  of 
any  one  or  more  other  ditches,  canals  or  reservoirs,  which  by 
said  decree  derive  undue  advantage  in  respect  of  priority  as 
against  that  or  those  represented  by  appellants ;  and  also  setting 
forth  the  name  or  names  of  the  party  or  parties  claiming  such 
other  one  or  more  ditches,  canals  or  reservoirs,  affected  in  com- 
mon by  said  decree  adversely  to  the  interest  of  appellant  or  ap- 
pellants, and  praying  that  an  appeal  be  allowed  against  such 
other  parties  as  appellees.  If  the  court  or  judge  in  vacation,  on 
examination,  find  such  statement  in  accordance  with  the  state- 
ments of  claim  filed  by  the  parties  named  as  appellees,  mentioned 
in  section  one  of  this  act,  he  shall  approve  the  same  and  make  an 
order  to  be  prepared  and  presented  by  the  appellants  allowing 
the  appeal  and  showing  the  name  or  names  of  the  appellants  and 
appellees,  with  the  name  or  names  or  description  of  the  one  or 
more  ditches,  canals  or  reservoirs,  claimed  by  the  party  or  par- 
ties appellant  or  appellee,  as  shown  by  their  several  statements 


58 

of  claim  filed  as  aforesaid,  before  the  taking  of  testimony,  and 
fix  the  amount  of  the  appeal  bond,  which  bond  shall  be  executed 
by  one  or  more  of  appellants,  as  principal  or  principals,  and  by 
sufficient  securities,  and  approved  by  the  court  or  judge  in  vaca- 
tion, and  shall  be  conditioned  for  the  payment  of  all  costs  which 
may  be  awarded  against  the  appellants  or  any  of  them  in  the 
supreme  court.  [G.  S.,  §1789;  L.  '81,  p.  156,  §27. 

[Section  1  above  referred  to  is  section  3277.] 

3308.  Copy  of  order  served  on  appellees — Publication  and  post- 
ing copies — Proof. — Sec.  144.     The  order  last  aforesaid  shall  be 
entered  of  record,  and  the  appellant  or  appellants  shall  cause  a 
certified  copy  thereof  to  be  served  on  each  of  the  appellees,  by 
delivering  the  same  to  him  or  her,  if  he  or  she  may  be  found,  or 
otherwise  serving  the  same  in  manner  the  same  as  may  be  at  the 
time  approved  for  serving  summons  from  the  district  court  by 
the  laws  then  in-  force,  and  shall  also  cause  the  said  order  to  be 
published  in  the  same  manner  as  the  notices  required  to  be  pub- 
lished by  the  referee  mentioned  in  section  eleven  of  this  act,  and 
proof  of  the  publication  in  any  newspaper  shall  be  the  same  as  in 
case  of  said  referee's  notice,  and  proof  of  the  posting  of  the  ten 
printed  copies  in  the  district  shall  be  by  affidavit  of  the  party 
posting  the  same,  with  the  certificate  of  the  clerk  of  the  district 
court  appealed  from,  that  the  affiant  is  a  known  and  credible 
person.     [G.  S.,  §1790;  L.  '81,  p.  157,  §28. 

[Section  11  above  referred  to  is  section  3292.] 

[For  service  of  summons  see  Code,  section  40,  p.  81.] 

3309.  Proof  of  service  of  notice — Supreme  court  make  rules. 
—Sec.  145.    The  said  proof  of  the  service  and  publication  of  said 
order  allowing  the  appeal  shall  be  filed  with  the  clerk  of  the 
supreme  court  within  sixty  days  after  the  making  of  said  order, 
and  if  not  so  filed,  the  supreme  court  shall,  on  motion  of  the 
appellee  or  any  of  the  appellees,  at  any  time  after  such  default 
in  filing  said  proof,  and  before  the  said  proof  shall  be  filed,  dis- 
miss such  appeal,  and  if  the  transcript  of  record  be  not  filed 
within  the  time  limited  by  section  twenty-nine  of  this  act,  such 
appeal  shall,  on  motion,  be  dismissed.     After  the  filing  of  the 
record  and  proof  of  service  as  aforesaid,  the  cause  on  appeal  shall 
be  proceeded  with  as  the  rules  of  the  supreme  court,  or  such  spe- 
cial rules  as  said  court  may  make  in  such  cases,  and  their  order 
from  time  to  time  thereunder  may  require.    Said  court  shall  have 
power  to  make  any  and  all  such  rules  concerning  such  appeals 
as  may  be  necessary  and  expedient  in  furtherance  of  this  act,  as 
well  as  to  preparation  of  the  case  for  submission  as  to  supplying 
deficiencies  of  record,  if  any,  and  for  avoiding  unnecessary  costs 
and  delay.     [G.  S.,  §179'4;  L.  '81,  p.  158,  §32. 

[Section  29  above  referred  to  is  section  3310.] 


59 

3310.  Transcript  to  be  filed  in  six  months — Bill  of  exceptions, 
— Sec.  14G.    The  appellant  or  appellants  shall  file  the  transcript 
of  record  of  the  district  court  with  the  clerk  of  the  supreme  court 
at  any  time  within  six  months  after  the  appeal  shall  be  allowed 
as  aforesaid.    Only  so  much  of  the  decree  appealed  from,  and  so 
much  of  the  evidence  as  shall  affect  the  appropriations  of  water 
claimed  by  means  of  the  construction  or  enlargement  or  re-en- 
largement of  the  several  ditches,  canals  and  reservoirs  mentioned 
in  the  order  allowing  the  appeal,  need  be  copied  into  the  bill  of 
exceptions.     [G.  S.,  §1791;  L.  '81,  p.  157,  §29. 

3311.  Coses  in  supreme  court. — Sec.  147.     The  supreme  court, 
on  dismissal  of  such  appeal,  or  on  affirming  or  reversing  the  parts 
of  the  decree  appealed  from,  in  whole  or  in  part,  shall  award 
costs,  as  in  its  discretion  shall  be  found  and  held  to  be  equitable. 
[G.  &.,  §1792;  L.  '81,  p.  158,  §30. 

3312.  Supreme  court  amend  or  make  new  decree,  or  remand. 
— Sec.  148.    The  supreme  court,  in  all  cases  in  which  judgment  is 
rendered,  and  any  part  of  the  decree  appealed  from  is  reversed, 
and  in  which  it  may  be  practicable,  shall  make  such  decree  in 
the  matters  involved  in  the  appeal  as  should  have  been  made  by 
the  district  court,  or  direct  in  what  manner  the  cfecree  of  that 
court  shall  be  amended.     [G.  S.,  §1793;  L.  '81,  p.  158,  §31. 


.    D.     GENERAL  PROVISIONS 

Section.  Section. 

3313.  Suit  must  be  brought  in  3317.     Effect  of  failure  to   offer 

four  years — Injunction —  evidence. 

Commissioner's  duty.  3318.     Re-argument  —  Review — 

3314.  After     four     years     suit  Limitation  two  years. 

barred.  3319.     Sheriff  not  to  serve  writ 

3315.  Court  may   make  rules—  outside  his  county. 

Act  liberally   construed.  3320.     Fees    of    district    clerk— 

3316.  Party  must  file  claim  be-  How  audited — Paid. 

fore  offering  evidence. 

3313.  Suits  must  be  brought  in  four  years — Injunctions — Com- 
missioner's duty. — Sec.  149.  Nothing  in  this  act  or  in  any  decree 
rendered  under  the  provisions  thereof,  shall  prevent  any  person, 
association  or  corporation  from  bringing  and  maintaining  any 
suit  or  action  whatsoever  hitherto  allowed  in  any  court  having 
jurisdiction,  to  determine  any  claim  of  priority  of  right  to  water, 
by  appropriation  thereof,  for  irrigation  or  other  purposes,  at  any 
time  within  four  years  after  the  rendering  of  a  final  decree  under 
this  act  in  the  water  district  in  which  such  rights  may  be  claimed, 
save  that  no  writ  of  injunction  shall  issue  in  any  case  restraining 
the  use  of  water  for  irrigation  in  any  water  district  wherein  such 


60 

final  decree  shall  have  been  rendered,  which  shall  affect  the  dis- 
tribution or  use  of  water  in  any  manner  adversely  to  the  rights 
determined  and  established  by  and  under  such  decree,  but  in- 
junctions may  issue  to  restrain  the  use  of  any  water  in  such  dis- 
trict not  affected  by  such  decree,  and  restrain  violations  of  any 
right  thereby  established,  and  the  water  commissioner  of  every 
district  where  such  decree  shall  have  been  rendered  shall  con- 
tinue to  distribute  water  according  to  the  rights  of  priority  de- 
termined by  such  decree,  notwithstanding  any  suits  concerning 
water  rights  in  such  district,  until  in  any  suit  between  parties 
the  priorities  between  them  may  be  otherwise  determined,  and 
such  water  commissioner  have  official  notice  by  order  of  the  court 
or  judge  determining  such  priorities,  which  notice  shall  be  in 
such  form  and  so  given  as  the  said  judge  shall  order.  [G.  S., 
§1796;  L.  '81,  p.  159,  §34. 

3314.  After    four   years    suit    barred. — Sec.  150.     After  the 
lapse  of  four  years  from  the  time  of  rendering  a  final  decree,  in 
any  water  district,  all  parties  whose  interests  are  thereby  affected 
shall  be  deemed  and  held  to  have  acquiesced  in  the  same,  except 
in  case  of  suits  before  then  brought,  and  thereafter  all  persons 
shall  be  forever  barred  from  setting  up  any  claim  to  priority  of 
rights  to  water  for  irrigation  in  such  water  district  adverse  or 
contrary  to  the  effect  of  such  decree.     [G.  S1.,  §1797;  L.  '81,  p. 
160,  §35*. 

3315.  Court  may  make  rules — Act  liberally  construed.— Sec. 
151.    The  district  court,  or  judge  thereof  in  vacation,  shall  have 
power  to  make  all  orders  and  rules  consistent  with  this  act  wrhich 
may  be  found  necessary  and  expedient,  from  time  to  time  during 
the  progress  of  the  case,  for  carrying  out  the  intent  of  this  act, 
and  of  all  parts  consistent  therewith  of  the  said  act,  the  title  of 
which  is  recited  in  section  four  thereof ;  as  well  touching  the  pro- 
ceedings in  court  as  of  the  acts  and  doings  of  said  referee,  for  the 
purpose  of  securing  to  any  party  aggrieved  by  the  acts  of  said 
referee  or  any  proceeding  of  the  court,  opportunity  for  redress; 
and  this  act  shall  be  construed  liberally  in  all  courts,  in  favor  of 
securing  to  all  persons  interested  the  just  determination  and  pro- 
tection of  their  rights.     [G.  S.,  §1786;  L.  '81,  p.  155,  §24. 

[Section  4  above  referred  to  is  section  3284.] 

3316.  Party  must  file  claim  before  offering  evidence.— Sec.  152. 
No  persons,  association  or  corporation  representing  any  ditch, 
canal  or  reservoir,  shall  be  permitted  to  give  or  offer  any  evidence 
before  said  referee  until  he,  she  or  they  shall  have  filed  a  state- 
ment of  claim  in  substance  the  same  in  all  respects  as  is  required 
to  be  filed  under  the  provisions  of  section  one  hereof.     [G.  S., 
§1787;  L.  '81,  p.  155,  §25. 

[Section  1  referred  to  is  section  3277.] 


61 

3317.  Effect  of  failure  to  oifer  evidence. — Bee.  153.     No  claim 
of  priority  of  any  person,  association  or  corporation,  on  account 
of  any  ditch,  canal  or  reservoir,  as  to  which  he,  or  she,  or  they 
shall  have  failed  or  refused  to  offer  evidence  under  any  adjudica- 
tion herein  provided  for  or  heretofore  provided  for  by  said  act, 
the  title  of  which  is  recited  in  section  four  hereof,  shall  be  re- 
garded by  any  water  commissioner  in  distributing  water  in  times 
of  scarcity  thereof,  until  such  time  as  such  party  shall  have  by 
application  to  the  court  having  jurisdiction,  obtained  leave  and 
made  proof  of  the  priority  of  right  to  which  such  ditch,  canal  or 
reservoir  shall  be  justly  entitled,  which  leave  shall  be  granted  in 
all  cases  upon  terms  as  to  notice  to  other  parties  interested,  and 
on  payment  of  all  costs,  and  upon  affidavits  or  petition  sworn  to 
showing  the  rights  claimed  and  the  ditches,  canals  and  reservoirs, 
with  the  names  of  the  owners  thereof  against  which  such  priority 
is  claimed,  nor  until  a  decree  adjudging  such  priority  to  such 
ditch,  canal  or  reservoir  has  been  entered,  and  certificate,  such 
as  mentioned  in  section  four  hereof,  shall  have  been  issued  to 
claimant  and  presented  to  the  water  commissioner.    [G.  S.,  §1784; 
L.  '81,  p.  154,  §22. 

[Section  4  referred  to  is  section  3284.] 

3318.  Re-argument — Review — Limitation     two     years. — Sec. 
154.     The  district  court,  or  judge  thereof  in  vacation,  shall  have 
power  to  order,  for  good  cause  shown,  and  upon  terms  just  to  all 
parties,  and  in  such  manner  as  may  seem  meet,  a  re-argument  or 
review,  with  or  without  additional  evidence,  of  any  decree  made 
under  the  provisions  of  this  act,  whenever  said  court  or  judge 
shall  find  from  the  cause  shown  for  that  purpose  by  any  party 
or   parties   feeling  aggrieved,   that  the  ends  of  justice  will  be 
thereby  promoted;  but  no  such  review  or  re-argument  shall  be 
ordered  unless  applied  for  by  petition  or  otherwise  within  two 
years  from  the  time  of  entering  the  decree  complained  of.     [G.  S., 
§1788;  L.  '81,  p.  150,  §26. 

3319.  Sheriff  not   serve   writ   outside   his   county. — Sec.  155. 
Nothing  herein  contained  shall  be  construed  to  authorize  any 
sheriff  to  serve  any  writ  outside  the  limits  of  his  own  county,  or 
give  effect  to  any  record  by  way  of  notice  or  otherwise,  in  any 
county  other  than  that  in  which  he  belongs.     [G.  S.,  §1800;  L. 
'79,  p!  106,  §35. 

3320.  Fees  of  district  clerk — How  audited — Paid. — Sec.  156. 
The  fees  of  the  clerk  of  the  district  court  for  a  service  rendered 
under  this  act  shall  be  paid  by  the  counties  interested  in  the 
same  manner  as  the  fees  of  the  water  commissioners,  upon  the 
said  clerk  rendering  his  account  certified  by  the  district  judge  to 
the  board  or  boards  of  county  commissioners  of  the  county  or 


62 


counties  embracing-  the  water  district  in  case  of  which  the  ser- 
vices shall  have  been  rendered.     [G.  S.,  §1801;  L.  '79,  p.  108,  §43. 


V.     STATE  ENGINEER. 


Section. 
3321.     State 


engineer — Appoint- 
ment —  Office— Salary- 
Oath — Bond. 

3322.  General    duties    of    state 

engineer. 

3323.  Shall  approve  designs -and 

plans. 

3324.  Supervision  over  division 

engineers    and    water 
commissioners. 

3325.  Additional    duties    of    en- 

gineer. 

3326.  Appoint  deputy  for  special 

work. 


Section. 
3327.     Deputies  —  Appointment 

— Oath — Engineer  liable 
for  acts. 

3328.  Pay    of   deputies   and    as- 

sistants. 

3329.  Require  owner  of  ditch  to 

construct   and   maintain 
a  measuring  weir. 

3330.  Cubic     foot     per     second, 

unit  of  measurement. 

3331.  Report  of  state  engineer. 

3332.  Fees    collected    by    state 

engineer. 

3333.  Pees  deposited  with  state 

treasurer. 

3334.  Application  of  fees. 


3321.  State     engineer — Appointment — Office — Salary — Oath- 
Bond. — Sec.  157.     The  governor  shall  appoint  a  state  engineer, 
who  shall  hold  his  office  for  the  term  of  two  years,  or  until  his 
successor  shall  be  appointed  and  qualified.     The  governor  may 
at  any  time,  for  cause  shown,  remove  said  state  engineer.     The 
said  state  engineer  shall  have  his  office  at  the  state  capitol,  in 
suitable  rooms  to  be  provided  for  him  by  the  secretary  of  state, 
who  shall  furnish  him  with  suitable  furniture,  postage  and  such 
proper  and  necessary  stationery,  books  and  instruments  as  are 
required  to  best  enable  him  to  discharge  the  duties  of  his  office. 
He  shall  be  paid  a  salary  of  three  thousand  dollars  per  annum, 
payable  monthly  by  the  state  treasurer,  on  warrants  drawn  by 
the  state  auditor.    The  said  state  engineer  shall,  before  entering 
on  the  discharge  of  his  duties,  take  and  subscribe  to  an  oath, 
before  the  judge  of  a  state  court  of  record,  to  faithfully  perform 
the  duties  of  his  office,  and  file  said  oath  with  the  secretary  of 
state,  together  with  his  official  bond,  in  the  penal  sum  of  ten 
thousand  dollars,  said  bond  to  be  signed  by  sureties  approved  by 
the  secretary  of   state  and  conditioned  upon   the  faithful   dis- 
charge of  the  duties  of  his  office  and  for  delivering  to  his  suc- 
cessor, or  other  officer  authorized  by  the  governor  to  receive  the 
same,  all  moneys,  books,  instruments  and  other  property  belong- 
ing to  the  state  then  in  his  possession  or  under  his  control,  or 
with  which  he  may  be  legally  chargeable  as  such  state  engineer. 
[L.  '89,  p.  371,  §1. 

3322.  General  duties  of  state  engineer.— Sec.  158.     The  state 
engineer  shall  have  general  supervising  control  over  the  public 


63 

waters  of  the  state.  He  shall  make  or  cause  to  be  made  careful 
measurements  of  the  flow  of  the  public  streams  of  the  state  from 
which  water  is  diverted  for  any  purpose,  and  compute  the  dis- 
charge of  the  same.  He  shall  also  collect  all  necessary  data  and 
information  regarding  the  location,  size,  cost  and  capacity  of 
dams  and  reservoirs  hereafter  to  be  constructed,  and  like  data 
regarding  the  feasibility  and  economical  construction  of  reser- 
voirs on  eligible  sites,  of  which  he  may  obtain  information,  and 
the  useful  purposes  to  which  the  water  from  the  same  may  be 
put.  He  shall  also  collect  all  data  and  information  regarding 
the  snow-fall  in  the  mountains  each  season,  for  the  purpose  of 
predicting  the  probable  flow  of  water  in  the  streams  of  the  state, 
and  publish  the  same.  [L.  '89,  p.  372,  §2. 

[Duties  appertaining  to  reservoirs.     Sections  3205-3214.] 
[Report  of  engineer  on  desert  land  projects.     Section  5145.] 

3323.  Shall  approve  designs  and  plans. — Sec.  159.     The  state 
engineer  shall  approve  the  designs  and  plans  for  the  construction 
and  repair  of  all  dams  or  reservoir  embankments  which  are  built 
within  the  state,  which  equal  or  exceed  ten  feet  in  vertical  height. 
[L.  '89,  p.  372,  §3. 

[Office  of  division  superintendent  abolished  and  division  engineers  provided 
in  their  place.     Section  3335.] 

3324.  Supervision  over  division  engineers  and  water  commis- 
sioners.— Sec.  100.    The  state  engineer  shall  have  general  charge 
over  the  work  of  the  division  water  superintendents  and  district 
water  commissioners,  and  shall  furnish  them  with  all  the  data 
and   information   necessary   for  the  proper   and  intelligent  dis- 
clmrgo  of  the  duties  of  their  offices,  and  shall  require  them  to 
report  to  him  at  suitable  times  their  official  actions,  and  require 
of  them  annual  statements,  on  blanks  to  be  furnished  by  him, 
of  the  amount  of  water  diverted  from  the  public  streams  in  their 
respective  divisions  and  districts,  and  such  other  statistics  as, 
in  the  judgment  of  the  state  engineer,  will  be  of  benefit  to  the 
state.    .[L.  '89,  p.  373,  §4. 

3325.  Additional   duties   of  engineer. — Sec.   161.     The   state 
engineer  shall,  without  any  extra  pay  or  compensation  beyond 
the  salary  provided  in  section  one  of  this  act,  perform  all  duties 
imposed  upon  him  by  law,  and  .shall  when  called  upon  by  the 
governor,  give  his  counsel  and  services,  without  extra  pay  or 
compensation,  ta  any  state  department  or  institution ;  Provided, 
however.  That  he  shall  be  allowed  all  actual  traveling  and  other 
necessary  expenses,  and  the  actual  cost  of  preparing  necessary 
maps  and  drawings,  which  actual  expenses  shall  be  paid  by  the 
department   or   institution    requiring   his   services.     [L.   '89,   p. 
373,  §6. 

3326.  Appoint  deputy  for  special  work. — Sec.  162.     The  stato 
engineer  shall,  on  request  of  any  party  interested  and  on  pay- 


64 

ment  of  his  per  diem  charges  and  reasonable  expenses,  appoint  a 
deputy  to  measure,  compute  and  ascertain  all  necessary  data  of 
any  canal,  dam,  reservoir  or  other  construction,  as  required  or 
as  may  be  desired  to  establish  court  decrees,  or  for  filing  state- 
ments, in  compliance  with  law,  in  the  county  clerk's  records. 
[L.  '89,  p.  373,  §5. 

3327.  Deputies — Appointment — Oath — Engineer  liable  for  acts. 
—Sec.  163.     The  state  engineer  may  appoint  one  or  more  dep- 
uties, as  he  may  think  proper,  for  whose  official  actions  he  shall 
be  responsible,  and  may  revoke  such  appointments  at  his  pleas- 
ure; and  he  may  also  deputize  any  person  to  do  a  particular 
service;  and  the  said  state  engineer  and  his  sureties  shall  be 
responsible  on  his  official  bond  for  the  default  or  misconduct  of 
his  deputies.    Such  appointment  and  revocation  shall  be  in  writ- 
ing, under  the  signature  and  official  seal  of  the  state  engineer, 
and  shall  be  filed  in  the  office  of  the  secretary  of  state.     All 
persons  appointed  shall  take  and  subscribe  to  an  oath,  before  the 
judge  of  a  court  of  record,  to  truly  perform  the  duties  of  the 
office  to  which  he  is  appointed ;  and  such  oath  shall  be  filed  with 
his  appointment  in  the  office  of  the  secretary  of  state.     In  addi- 
tion to  the  deputies  provided  for  in  this  section,  the  state  engineer 
may  employ  such  assistance  in  performing  the  work  of  his  office 
as  he  may  deem  necessary.     [L.  '89,  p.  373,  §7. 

3328.  Pay  of  deputies  and  assistants.— Sec.  164.     The  pay  of 
the  deputies  and  assistants  of  the  state  engineer  shall  not  exceed 
the  sum  of  six  dollars  per  day  for  each  day  employed,  together 
with  actual  expenses,  and  the  whole  amount  which  may  be  so 
expended   is   hereby   limited   to   the   sum   of   forty-five  hundred 
dollars  each  year.  <  [L.  '89,  p.  374.  §8. 

3329.  Require  owners  of  ditches  to  construct  and  maintain  a 
measuring  weir. — Sec.  165.     For  the  more  accurate  and  conven- 
nient  measurement  of  any  water  appropriated  pursuant  to  any 
judgment  or  decree  rendered  by  any  court  establishing  the  claims 
of  priority  of  any  ditch,  canal  or  reservoir,  the  owners  thereof 
may  be  required  by  the  state  engineer  to  construct  and  maintain, 
under  the  supervision  of  the  state  engineer,  a  measuring  weir  or 
other  device  for  measuring  the  flow  of  the  water  at  the  head  of 
such  ditch,  canal  or  reservoir,  or  as  near  thereto  as  practicable. 
The  state  engineer  shall  compute,  and  arrange  in  tabular  form, 
the  amount  of  water  that  will  pass  such  weir  or  measuring  de- 
vice at  the  different  stages  thereof,  and  he  shall  furnish  a  copy 
of  a  statement   thereof   to   any   water  superintendents   or  com- 
missioners   having   control    of    such    ditch,    canal    or    reservoir. 
[L.  '89,  p.  374,  §9. 


3330.  Cubic  foot  per  second,  unit  of  measurement. — Sec.  166. 
The  state  engineer  shall  use  in  all  his  calculations,  measurements, 
records  and  reports,  the  cubic  foot  per  second  as  the  unit  of 
measurement  of  flowing  water,  and  the  cubic  foot  as  the  unit  of 
measurement  of  volume.     [L.  '89,  p.  374,  §10. 

[Cubic  inch  of  water  defined.     Section  7026.] 

3331.  -Report  of  state  engineer. — Her.  1(57.     The  state  engi- 
neer shall  prepare  and  render  to  the  governor  a  full  and  true 
report  of  his  work,  regarding  all  matters  and  duties  devolving 
upon  him  by  virtue  of  his  office,  which  report  shall  be  delivered 
at  the  time  when  the  reports  of  other  state  officers  are  required 
by  law  to  be  made,  in  order  that  it  may  be  laid  before  the  general 
assembly  at  each  regular  session  thereof.     [L.  '89,  p.  374,  §11. 

[Act  of  1889,   sections  3321-3331,   repealed,   G.   S.,  sections  1S07-1S13.] 

3332.  Fees  collected  by  state  engineer. — Sec.  168.     Fees  shall 
be  collected  by  the  state  engineer  for  work  done  in  his  office  as 
follows : 

For  the  exam-ination,  filing  and  certification  to  the  dupli- 
cate of  each  map  and  statement  describing  a  claim  to  a  wTater 
right  and  of  each  judicial  decree  ordering  the  transfer  of  a  water 
right,  11.00. 

For  each  certificate  other  than  that  made  in  the  case  of 
original  filings  requiring  official  signature  and  seal,  $1.00. 

For  the  examination  and  filing  of  each  set  of  plans  and 
specifications  for  reservoirs,  dams,  embankments,  and  other  struc- 
tures for  the  purpose  of  utilizing  or  storing  water,  $1.00  for 
each  $5,000.00  or  fraction  thereof  of  the  estimated  cost  of  such 
structure  or  structures. 

For  copies  of  plats,  the  sum  of  $1.00  for  each  hour  or  frac- 
tion thereof  necessary  for  the  making  of  the  same. 

For  copies  of  records,  10  cents  per  folio.     [L.  '03,  p.  294,  §1. 

[Fee  for  inspection  of  reservoir.     Sections  3206  and  3211.] 

3333.  Fees  deposited  with  state  treasurer.— Sec.  169.     At  the 
end  of  each  month  the  sum  of  the  fees  collected  during  the  month, 
as  provided  for  in  section  1  of  this  act,  shall  be  deposited  with 
the    state   treasurer,    with    a   complete    statement    showing    the 
amounts  thus  received  and  the  sources  from  which  they  are  de- 
rived, and  the  said  amounts  shall  be  credited  by  the  said  treas- 
urer to  a  fund  which  shall  be  known  as  a  ganging  fund.     [L.  '03, 
p.  295,  §2. 

[Sections  3332-3334  amend  by  implication  L<.   '99,  p.  348,  sections  1-2.] 

3334.  Application  of  fees. — Sec.  170.     The  amount  credited 
to  the  gauging  fund  created  as  hereinbefore  provided  shall  be 
available  for  the  payment  of  expenses  and  salaries  required  for 
work  of  gauging  streams,  rating  ditches,  making  seepage  measure- 
ments, or  other  work  connected  with  the  proper  distribution  of 


66 


water  or  ascertaining  desired  information  concerning  the  flow  of 
water.  Warrants  for  tlie  payments  of  such  salaries  and  expenses 
shall  be  issued  by  the  auditor  of  state  upon  presentation  of 
vouchers  regularly  drawn  and  approved  by  the  state  engineer. 
[L.  '03,  p.  295,  §3*. 

[Sections  3332-3334  amend  by  implication  L.  '99,  p.  348,   sections  1-2.] 


VI.     IRRIGATION   DIVISIONS— DIVISION   ENGINEERS. 


Section. 

3335.  Appointment'  of    division 

engineers  —  Boundaries 
of  irrigation  divisions. 

3336.  Jurisdiction    of    irrigation 

divisions  Nos.  4  and  5. 

3337.  Examination    to    fill    va- 

cancy. 

3338.  Application    for    appoint- 

ment    as     division     en- 
gineer. 

3339.  Qualifications      of     appli- 

cant. 

3340.  Examination    of   papers — 

Rating  certified  to  gov- 
ernor. 

3341.  Term  of  office  of  division 

engineer. 

3342.  Salaries  and  expenses  of 

engineers. 

3343.  Oath  of  office— Bond. 


Section. 

3344.  Powers  and  duties  of  en- 

gineer— A  p  p  e  a  1     from 
rulings. 

3345.  Charges      against      water 

commissioner  —  Trial — 
Suspension  —  Removal. 

3346.  Certified  copy  of  priority 

decree      furnished      en- 
gineer. 

3347.  Meeting    of    division    en- 

gineers— Reports. 

3348.  Report  of  water  commis- 

sioners— Contents. 

3349.  Clerk  furnish  copies  of  de- 

crees    to     division     en- 
gineer. 

3350.  Commissioners    report    to 

engineer. 

3351.  Owner  report  failure  to  re- 

ceive    water — Duty     of 
engineer. 

3352.  Fees  of  district  clerk. 


3335.  Appointment  of  division  engineers — Boundaries  of  irri- 
gation divisions. — Sec.  171.  The  office  of  superintendent  of  irri- 
gation is  hereby  declared  abolished,  and  in  place  of  such  super  in 
tendents  the  governor  shall,  subject  to  confirmation  by  the  senate, 
appoint  five  persons,  who  shall  be  known  as  irrigation  division 
engineers,  who  shall  be  qualified  to  perform  the  duties  devolving 
upon  them,  as  hereinafter  provided,  one  of  the  said  officers  to 
have  jurisdiction  over  irrigation  division  No.  1,  comprising  all 
water  districts  now  or  hereafter  to  be  formed,  consisting  of  lands 
in  the  state  of  Colorado  irrigated  by  water  taken  from  the  South 
Platte  river,  the  North  Platte  river,  the  Big  Laramie  river,  the 
North  and  Middle  forks  of  the  Republican  river,  Sandy  and 
Frenchman's  creeks,  and  the  streams  draining  into  the  said 
rivers  and  creeks;  one  over  irrigation  division  No.  2,  comprising 
all  water  districts  now  or  hereafter  to  be  formed,  consisting  of 
lands  irrigated  by  water  taken  from  the  Arkansas  river,  the 
South  Fork  of  the  Republican  river,  the  Smoky  Hill  river  and  the 
Dry  Cimarron  river,  and  the  streams  draining  into  the  said 


67 

rivers;  one  over  irrigation  division  No.  3,  comprising  all  water 
districts  now  or  hereafter  to  be  formed,  consisting  of  lands 
watered  from  the  Eio  Grande  river  and  its  tributaries;  one  over 
irrigation  division  No.  4,  which  is  hereby  created,  comprising 
all  water  districts  now,  or  hereafter  to  be  formed,  consisting  of 
lands  in  the  state  of  Colorado  watered  by  the  San  Juan  river 
and  its  tributaries ;  and,  also,  all  water  districts  now,  or  here- 
after to  be  formed,  consisting  of  lands  in  the  state  of  Colorado 
watered  by  the  Grand  river  and  its  tributaries,  below  the  mouth 
of  Roan  creek,  including  water  district  No.  42,  and  one  over 
irrigation  division  No.  5,  which  is  hereby  created,  comprising 
all  water  districts  now  or  hereafter  to  be  formed,  consisting 
of  lands  in  the  state  of  Colorado  watered  by  the  Grand  river 
and  its  tributaries  above  and  including  Roan  creek  and  water 
districts  Nos.  39  and  45,  and,  also,  all  water  districts  now,  or 
hereafter  to  be  formed,  consisting  of  lands  in  the  state  of  Colo- 
rado irrigated  by  water  taken  from  the  Green  river  and  its  tribu- 
taries, respectively.  And  such  division  engineer  shall  be  ap- 
pointed from  the  division  over  which  he  has  jurisdiction,  and  he 
shall  have  been  a  resident  of  the  division  for  at  least  one  year 
prior  to  appointment.  [L.  '03,  p.  281,  §1. 

3336.  Jurisdiction  of  irrigation  divisions  Nos.  4  and  5. — Sec. 
172.     Said  water  districts  Nos.  39  and  70  shall  be  and  remain 
in  irrigation  division  No.  5  and  said  water  district  No.  42  shall 
be  and  remain  in  irrigation  division  No.  4.     [L.  705,  p.  243,  §4. 

3337.  Examination  to  fill  vacancy. — Sec.  173.     The  state  en- 
gineer shall  hold  examinations  whenever  a  vacancy  exists,  and 
such  examinations  shall  be  held  in  at  least  one  place  in  the  ter- 
ritory comprising  the  division,  or  divisions,  where  any  vacancy 
or  vacancies  exist,  and  twenty  days  prior  to  the  date  fixed  for 
any  such  examinations  he  shall  cause  notices,  for  a  period  of  one 
week,  to  be  inserted  in  one  daily  paper  of  general  circulation  in 
any  irrigation  divisions  where  any  vacancy  or  vacancies  exist; 
or,  if  there  be  no  daily 'paper,  then  in  one  weekly  paper  in  the 
said  division.     [L.  >03,r  p.  282,  §2. 

3338.  Application  for  appointment  as  division  engineer. — Sec. 
174.     Any  person  desiring  the  appointment  of  irrigation  division 
engineer  may  file  with  the  state  engineer  a  request  for  an  exami- 
nation as  to  his  qualifications,  and  the  state  engineer  shall  there- 
upon notify  the  applicant  of  the  time  and  place  w^here  the  next 
examination  is  to  be  held,  at  which  place  the  applicant  must 
present  himself  at  the   time   specified,   prepared   to   take   such 
examination.     [L.  '03,  p.  282,  §3. 

3339.  Qualifications  of  applicant. — Sec.  175.     Such  examina- 
tions shall  be  for  the  purpose  of  determining  the  qualifications 
of  applicants,  and  shall  comprise: 


68 

l-'irst — Questions  on  the  measurement  of  water,  which  shall 
include  tests  in  the  actual  measurements  of  water  in  the  field,  on 
a  basis  of  30  per  cent,  of  the  total. 

Second — Questions  on  the  laws  and  customs  relative  to  irri- 
gation and  water  rights  in  Colorado,  and  including  questions  re- 
lating to  the  local  conditions  of  the  division  for  which  the  ex- 
amination is  being  held,  on  a  basis  of  30  per  cent,  of  the  total. 

Third — Questions  on  his  experience  and  the  extent  of  his 
practice  in  matters  relating  to  the  use  of  water  in  irrigation  or 
for  other  beneficial  purposes,  on  a  basis  of  40  per  cent,  of  the 
total.  [L.  '03,  p.  283,  §4. 

3340.  Examination  of  papers — Rating  certified  to  governor.— 
Sec.  176.     The  state  engineer  shall  examine  and  rate  the  exami- 
nation papers  of  each  applicant,  and  shall   certify  to  the  gov- 
ernor a  list  of  names  of  all  those  receiving  a  rating  of  70  per- 
cent, or  over,  together  with  the  markings  of  each,  and  from  this 
list  the  governor  shall,  subject  to  confirmation   by  the  senate, 
appoint  persons  to  fill  vacancies;  Provided,  That  such  list  shall 
hold  good  for  a  period  of  two  years  from  the  date  of  its  certifi- 
cation to  the  governor,  but  no  longer;  And,  proridcd.  pirtlicr, 
That  nothing  herein  contained  shall  prevent  any  candidate  from 
taking  later  examinations  for  the  purpose  of  reinstatement  or 
of  improving  his  rating.     [L.  '03,  p.  283,  §5. 

3341.  Term   of   office   of   division   engineer. — Sec.  177.     Any 
irrigation  division  engineer  appointed  as  hereinbefore  provided, 
shall  be  appointed  for  a  term  of  two  years,  or  until  his  succes- 
sor shall  have  been  appointed  and  qualified,   and   shall   be   re- 
moved only  for  malfeasance  in  office,  incompetently  or  neglect 
of  duty.     [L.  '03,  p.  283,  §6. 

3342.  Salaries    and    expenses  of  engineers. — Sec.  178.     Each 
irrigation  division  engineer  shall  receive  the  sum  of  one  hundred 
and  twenty-five   (125)    dollars  per  month,  for  the  time  actually 
employed  in  the  discharge  of  his  duties,  payable  monthly  upon 
vouchers,  approved  by  the  state  engineer, 'drawn  upon  the  audi- 
tor of  state,  by  whom  a  warrant  shall  be  drawn  upon  the  state 
treasurer  therefor.    He  shall  also  receive  reimbursements  for  all 
necessary  expenses,  evidenced  by  vouchers,  incurred  in  the  per- 
formance of  his  duties,  which  expenses  shall  not  exceed  the  sum 
of  five  hundred  (500)  dollars  per  annum,  and  such  expenses  shall 
be  paid  upon  vouchers,  approved  by  the  state  engineer,  drawn 
upon  the  auditor  of  state,  by  whom  a  warrant  shall  be  drawn  on 
the.  state  treasurer  therefor.     [L.  '03,  p.  283,  §7. 

3343.  Oath  of  office — Bond. — Sec.  179.     Before  entering  upon 
the  duties  of  his  office  the  irrigation  division  engineer  shall  sub- 


69 

scribe  to  an  oath  before  the  judge  of  a  court  of  record  that  he 
will  faithfully  perform  the  duties  of  his  office,  and  shall  file 
said  'oath  with  the  secretary  of  state,  together  with  his  official 
bond  in  the  penal  sum  of  five  thousand  (5,000)  dollars,  said 
bond  to  be  signed  by  sureties  approved  by  the  secretary  of  state, 
and  conditioned  upon  the  faithful  discharge  of  the  duties  of  his 
office  and  for  delivery  to  his  successor  or  to  the  state  engineer, 
upon  demand,  all  moneys,  books,  instruments  and  other  prop- 
erty belonging  to  the  state  or  to  the  irrigation  divisions  under 
his  control.  [L.  '03,  p.  284,  §S. 

3344.  Powers  and  duties  of  engineer — Appeal  from  rulings. 
— Sec.  180.  The  duties  of  the  irrigation  division  engineer  shall 
be  as  follows:  He  shall  be  governed  by  all  acts  heretofore  en- 
acted relative  to  superintendents  of  irrigation  and  shall  have 
general  control  over  the  water  commissioners  of  the  several  dis- 
tricts within  his  division.  He  shall,  under  the  general  super- 
vision of  the  state  engineer,  execute  the  laws  of  the  state  rela- 
tive to  the  distribution  of  water,  in  accordance  with  the  right 
of  priority  of  appropriation,  as  established  by  judicial  decrees. 

He  shall,  in  the  distribution  of  water,  be  governed  by  the 
regulations  of  this  act,  and  acts  that  are  now  in  force,  but  for 
the  better  discharge  of  his  duties,  he  shall  have  the  authority  to 
make  such  other  regulations  to  secure  the  equal  and  fair  distri- 
bution of  water,  in  accordance  with  the  rights  of  priority  of 
appropriation,  as  may,  in  his  judgment,  be  needed  in  his  divi- 
sion: Provided,  Such  regulations  shall  not  be  in  violation  of  any 
part  of  this  act,  or  other  laws  of  the  state,  but  shall  be  merely 
supplementary  to  and  necessary  to  enforce  the  provisions  of  the 
general  laws\  and  amendments  thereto. 

Any  person,  ditch  company,  or  ditch  owner,  who  may  deem 
himself  injured  or  discriminated  against  by  any  such  order  or 
regulation  of  such  irrigation  division  engineer  shall  have  the 
right  to  appeal  from  the  same  to  the  state  engineer,  by  filing 
with  the  state  engineer  a  copy  of  the  order  or  regulation  com- 
plained of,  and  a  statement  of  the  manner  in  which  the  same  in- 
juriously affects  the  petitioner's  interest.  The  state  engineer 
shall,  after  due  notice,  hear  whatever  testimony  may  be  brought 
forward  by  the  petitioner,  either  orally  or  by  way  of  affidavits, 
and  through  the  irrigation  division  engineer  shall  have  power  to 
suspend,  amend  or  confirm  the  order  complained  of. 

He  shall  have  the  right  to  call  out  any  water  commissioner 
of  any  water  district  within  his  division,  at  any  time  he  may 
deem  it  necessary,  and  he  shall  have  the  power  to  perform  the 
regular  duties  of  water  commissioner  in  all  districts  within  his 
division. 


70 

And  such  division  engineers  shall,  further,  make  measure- 
ments of  streams;  shall  measure  and  rate  ditches;  shall  require 
the  water  commissioners  under  their  jurisdiction  to  make  annual 
reports,  as  hereinafter  provided,  on  or  before  the  15th  of  No- 
vember of  each  year ;  shall  collect  data  concerning  reservoirs  and 
reservoir  sites,  power  sites,  flow  of  water  in  streams,  and  per- 
form such  other  duties  as  the  state  engineer  shall  direct  and  as 
are  of  benefit  to  his  division,  or  divisions,  or  to  the  state  in  gen- 
eral. [L.  '03,  p.  284,  §9;  superseding  L.  '87,  p.  295,  §§2,  4  and  8. 

[Duties  oif  superintendent  of  irrigation  are  denned  in  L.  '87,  p.  295,  and  so 
far  as  not  superseded  are  found  in  this  compilation  as  sections  3349-3352.] 

3345.  Charges  against  water  commissioner — Trial — Suspension 
— Removal. — Sec.  181.  Charges  made  against  any  water  com- 
missioner for  malfeasance  in  office,  neglect  of  duty,  or  incom- 
petency  to  fulfill  the  duties  incumbent  upon  him,  shall  be  made 
to  the  division  engineer  in  writing,  setting  forth  the  specific 
charges  against  him,  who  shall  hold  a  fair  and  impartial  trial, 
after  five  days'  notice  to  such  water  commissioner,  upon  whom 
a  written  copy  of  the  charges  shall  be  served.  At  such  trial 
such  water  commissioner  shall  be  permitted  to  appear  in  per- 
son and  by  counsel,  and  introduce  evidence.  Should  such  water 
commissioner  be  found  guilty  of  any  of  the  offenses  charged, 
then,  and  in  that  case  only,  the  irrigation  division  engineer  hav- 
ing jurisdiction  is  hereby  empowered  to  suspend  him.  All  such 
investigations  shall  be  tried  and  determined  within  five  days 
from  the  date  set  for  trial,  and  at  which  trial  all  oral  testimony 
shall  be  reduced  to  writing;  Provided,  That  either  party  may 
take  depositions  an3rwhere  in  the  state  and  may  have  them  read 
at,  said  trial  by  giving  the  opposite  party  twenty-four  hours'  no- 
tice of  the  time  and  place  and  names  of  the  parties  whose  deposi 
tions  will  thus  be  taken. 

Upon  such  suspension  the  division  engineer  shall,  within 
ten  days,  file  all  pleadings,  papers  and  testimony  with  the  state 
engineer  for  review;  whereupon  the  state  engineer  shall  appoint 
a  competent  deputy  to  at  once  assume  control  of  the  district 
of  the  water  commissioner  so  suspended.  The  said  deputy  shall 
retain  such  control  until  the  disability  of  the  commissioner  is 
removed  or  a  new  commissioner  is  appointed  and  qualified,  and 
the  said  deputy  shall  be  paid  for  his  services  from  the  statfc 
engineer's  assistants'  fund.  The  state  engineer  shall  review  the 
action  of  the  division  engineer  as  expeditiously  as  possible,  and 
within  thirty  days  from  the  time  of  receiving  such  papers,  shall 
submit  his  findings  to  the  governor  for  his  action. 

In  case  such  suspension  of  any  water  commissioner  be  rec- 
ommended to  be  made  permanent  by  the  state  engineer  in  his 
findings,  the  governor  shall,  upon  the  recommendation  of  the 


71 

board  or  boards  of  county  commissioners,  as  provided  by  law, 
forthwith  appoint  some  suitable  and  competent  person  to  fill  such 
vacancy. 

The  person  or  corporation  making  any  such  charges  against 
any  water  commissioner  shall  furnish  a  good  and  responsible 
bond  in  such  reasonable  sum  as  may  be  fixed  by  the  division  en- 
gineer, conditioned  for  the  payment  of  the  reasonably  necessary 
expenses  incurred  by  the  water  commissioner  in  case  the  charges 
preferred  against  him  are  not  sustained  by  the  division  engineer. 

All  division  engineers  shall  be  under  the  control  and  super- 
vision of  the  state  engineer,  and  may  have  charges  preferred 
against  them  in  the  same  manner,  and  such  charges  may  be  heard 
and  determined  by  the  state  engineer  upon  the  same  conditions 
herein  provided  for  like  proceedings  against  the  water  commis- 
sioner. [L.  '03,  p.  285,  §10. 

3346.  Certified  copy  of  priority  decrees  furnished  engineer.— 
Sec.  182.     The  clerk  of  any  court  issuing  judicial  decrees  fixing 
the  priorities  of  appropriation  of  water  for  irrigation  or  other 
beneficial   purposes   in   any  of  such  divisions   shall   furnish   the 
irrigation    division    engineer   having  jurisdiction   with    certified 
copies   thereof,   as  heretofore   provided  by   law   in   the   case   of 
superintendents    of   irrigation,    whereupon    such    engineer   shall 
make  a  tabulated  statement  of  such  decrees,  in  a  book  prepared 
for  that  purpose,  and  shall  forward  a  copy  thereof  to  the  state 
engineer  and  keep  and  preserve  in  his  office  the  certified  copy. 
[L.  '03,  p.  287,  §11. 

3347.  Meetings    of    division    engineers — Reports. — Sec.    183. 
There  shall  be  held  in  the  office  of  the  state .  engineer  in  Novem- 
ber of  each  year  a  meeting  of  the  irrigation  division  engineers 
and  of  the  state  engineer  and  his  chief  assistant,*  at  which  meet- 
ing the  reports  of  the  irrigation  division  engineers  shall  be  pre- 
sented and  a  general  discussion  had  of  the  matters  which  have 
transpired  during  the  previous  season,  and  at  which  a  program 
of  the  work  for  the  ensuing  season  shall  be  discussed  and  deter- 
mined upon. 

The  reports  filed  with  the  state  engineer  shall  include  all  cor- 
respondence for  the  season  on  all  business  and  official  acts  for 
season  last  past,  and  shall  include  the  reports  of  the  water  com- 
missioners, as  hereinafter  defined,  and  other  data  and  informa- 
tion. [L.  '03,  p.  287,  §12. 

3348.  Report    of    water    commissioners — Contents. — Sec.  184. 
It  shall  be  the  duty  of  each  irrigation  division  engineer  to  pre- 
pare and  tabulate  the  reports  of  the  water  commissioners  in  his 
division,  which  reports  shall  contain  a  statement  of  the  actual 


72 

carrying  capacity  and  the  amount  of  water  actually  carried  by 
each  ditch  or  canal  in  his  district  for  each  and  every  day  when 
water  was  being  so  carried,  the  total  number  of  acres  lying  under 
each  ditch  or  canal  and  the  number  of  acres  actually  irrigated 
therefrom.  It  shall  also  contain  a  statement  of  the  kind  of  crops 
and  the  acreage  under  each  decreed  ditch  or  canal,  the  amount 
of  water  stored  in  each  reservoir,  the  amount  used  therefrom. 
with  the  dates  of  such  storage  and  use,  and  the  same  shall  be 
on  blanks,  or  in  books,  prepared  for  that  purpose  and  furnished 
by  the  state  engineer.  They  shall  contain  a  written  statement 
of  the  official  acts  of  the  commissioners,  and  other  matters  of 
interest  and  use,  and  shall  be  duly  subscribed  and  sworn  to  and 
filed  with  the  irrigation  division  engineer  on  or  before  the  15th 
day  of  November  of  each  year.  [L.  '03,  p.  287,  §13. 

3349.  Clerk  furnish  copies  of  decrees  to  division  engineer.— 
Sec.  1*85.  Within  thirty  days  after  his  appointment,  said  super- 
intendent of  irrigation  shall  send  to  the  clerk  of  the  district 
court,  within  his  division,  of  such  counties  as  have  had  rendered 
by  the  district  court  of  such  county,  judicial  decrees,  fixing  the 
priorities  of  appropriation  of  water  for  irrigation  purposes  for 
any  water  district,  a  notification  of  his  appointment  to  such 
office,  and  shall  request  of  the  said  clerk  a  certified  copy  of 
every  decree  of  the  district  court  establishing  priorities  of  appro- 
priation of  water  used  for  irrigation  purposes  within  that  dis- 
trict. Thereupon,  it  shall  be  the  duty  of  such  clerk,  within  ten 
days  after  the  receipt  of  such  request  from  said  superintendent 
of  irrigation,  to  prepare  a  certified  copy  of  all  decrees  of  such 
district  court  establishing  priorities  of  water  rights  made  within 
that  district,  under  the  provisions  of  the  general  statutes  of  the 
state  of  Colorado,  and  transmit  the  sanie  to  the  superintendent 
of  irrigation  requesting  it.  Said  superintendent  of  irrigation 
shall  then  cause  to  be  prepared  a  book  to  be  entitled,  uThe  Regis 
ter  of  Priorities  of  Appropriations  of  Water  Rights  for  Water 

Division  No ,  State  of  Colorado,"  within  which  he  shall  enter 

and  preserve  such  certified  copies  of  decrees.  Said  superintend- 
ent of  irrigation  shall,  from  such  certified  copies  of  decrees,  make 
out  a  list  of  all  the  ditches,  canals  and  reservoirs  entitled  to  ap- 
propriations of  water  within  his  division,  arranging  and  num- 
bering the  same  in  consecutive  order,  according  to  the  dates  of 
their  respective  appropriations  'within  his  division,  and  without 
regard  to  the  number  of  such  ditches,  canals  or  reservoirs  may 
bear  within  their  respective  water  districts.  Said  superintendent 
of  irrigation  shall  make  from  his  register  a  tabulated  statement 
of  all  the  ditches,  canals  and  reservoirs  in  his  division  whose 
priorities  have  been  decreed,  which  statement  shall  contain  the 


78 

following  information  concerning  each  ditch,  canal  and  reser 
voir  arranged  in  separate  columns.  The  name  of  the  ditch,  canal 
or  reservoir;  its  number  in  his  division;  the  district  in  which  it 
is  situated;  the  number  of  it  in  its  proper  district;  and  the  num- 
ber of  cubic  feet  of  water  per  second  to  which  it  is  entitled,  and 
such  other  and  further  information  as  he  may  deem  useful  to  the 
proper  discharge  of  his  duty.  In  case  any  decrees  of  court  estab- 
lishing priorities  of  appropriation  of  water  for  irrigation  pur- 
poses are  made  after  the  transmittal  of  the  copy  of  previous 
decrees  to  the  superintendent  of  irrigation,  it  shall  be  the  duty 
of  the  clerk  of  the  court  wherein  such  decree  is  rendered,  to 
transmit  to  the  superintendent  of  irrigation  of  the  division 
within  which  said  county  is  situated,  within  ten  days  after  it 
is  rendered,  a  copy  of  such  decree,  and  the  superintendent  of 
irrigation  shall  enter  the  same  in  his  register,  such  register  to 
be  tiled  and  kept  in  the  office  of  the  state  engineer.  [L.  '87,  p. 
207.  §7. 

[Division  engineers  succeeded  the  superintendent  of  irrigation.  See  section 
3335.] 

3350.  Commissioners  report  to  engineers. — Sec.  186.  All 
water  commissioners  shall  make  reports  to  the  superintendent 
of  irrigation  of  their,  division  as  often  as  may  be  deemed  neces- 
sary by  said  superintendent.  Said  reports  shall  contain  the  fol- 
lowing information :  The  amount  of  water  necessary  to  supply 
all  the  ditches,  canals  and  reservoirs  of  that  district;  the  amount 
of  water  actually  coming  into  the  district  to  supply  such  ditches, 
canals  and  reservoirs;  whether  such  supply  is  on  the  increase 
or  decrease;  what  ditches,  canals  or  reservoirs  are  at  that  time 
without  their  proper  supply ;  the  probability  as  to  what  the  sup- 
ply will  be  during  the  period  before  the  next  report  will  be  re- 
quired, and  such  other  and  further  information  as  the  superin- 
tendent of  irrigation  of  that  division  may  suggest.  Said  super- 
intendent of  irrigation  shall  carefully  file  and  preserve  such  re- 
ports, and  shall,  from  them,  ascertain  what  ditches,  canals  and 
reservoirs  are,  and  what  are  not,  receiving  their  proper  supply 
of  water;  and  if  it  shall  appear  that  in  any  district  in  that  divi- 
sion any  ditch,  canal  or  reservoir  is  receiving  water  whose  pri- 
ority post-dates  that  of  the  ditch,  canal  or  reservoir  in  another 
district,  as  ascertained  from  his  register,  he  shall  at  once  order 
such  post-dated  ditch,  canal  or  reservoir  shut  down  and  the 
water  given  to  the  elder  ditch,  canal  or  reservoir.  His  orders 
being  directed  at  all  times  to  the  enforcement  of  priority  of 
appropriation,  according  to  his  tabulated  statement  of  priorities, 
to  the  whole  division,  and  without  regard  to  the  district  within 
which  the  ditches,  canals  and  reservoirs  may  be  located.  The 
reports  of  water  commissioners  by  the  superintendents  of  irriga- 


74 

tion  shall  be  filed  and  kept  in  the  office  of  the  state  engineer. 

[L.  '87,  p.  298,  §9. 

[Division  engineers  succeeded  the  superintendent  of  irrigation.     See  section 
3335.] 

3351.  Owner  report  failure  to  receive  water — Duty  of  engineer. 
— Sec.  187.     In  case  any  ditch,  canal  or  reservoir,  in  any  district 
within  such  superintendent  of  irrigation's  division,  shall  fail  to 
receive  its  regular  supply  of  water,  the  owner  or  controller  of 
such  ditch,  canal  or  reservoir  may  report  such  fact  to  the  water 
commissioner  of  that  district,  who  shall  immediately  apportion 
the  water  in  his  district,  and  send  forthwith  by  .telegram,  if  nec- 
essary, a  report  of  such  fact  to  the  superintendent  of  irrigation 
of  his  division,  and  thereupon  it  shall  be  the  duty  of  said  super- 
intendent to  compare  such  report  with  his  register,  and  if  any 
ditch7  canal  or  reservoir  of  any  other  district  of  his  division 
is  receiving  water  to  which  any  ditch,  canal  or  reservoir  of  any 
other  district  is  entitled,  he  shall  at  once  order  the  shutting  down 
of  the  post-dated  ditches,  canals  or  reservoirs,  and  the  water 
given  to  the  ditches,  canals  or  reservoirs  having  the  priority  of 
appropriation';  Provided,  however,  That  nothing  in  this  act  shall 
be  construed  as  interfering  with  the  priority  of  water  for  domes- 
tic use.     [L.  '87,  p.  299,  §10. 

[See  note,  section  3350.] 

3352.  Fees  of  district  clerk. — Sec.   188.     The  expenses  and 
salary  of  the  superintendents  of  irrigation  shall  be  paid  pro  rata 
by  the  counties  interested,  in  the  same  manner  as  the  fees  of 
water  commissioners  are  paid,  and  the  fees  of  the  clerks  of  the 
district   courts,   for  services  rendered   under  the   provisions   of 
this  act,  shall  also  be  paid  by  the  counties  interested,  upon  the 
said  clerk  rendering  his  account,  certified  by  the  district  judge 
to  the  boards  of  county  commissioners  of  the  counties  embraced 
in  the  water  divisions  in  case  of  which  the  services  have  been 
rendered.     [L.  '87,  p.  299,  §11. 

[The  division  engineers'  salaries  are  provided  for  in  section  3342.] 

3353.  Lands  watered  constitute  districts.— Sec.  189.     That  the 
lands  now  irrigated,  or  which  may  be  hereafter  irrigated  from 
ditches  now  taking  water  from  the  following  described  rivers  or 
natural  streams  of  the  State  of  Colorado,  are  hereby  declared  to 
constitute  irrigation  districts.     [G.  S.,  §1741 ;  L.  '79,  p.  97,  §5. 

[Unlawful  to  cut  trees  which  conserve  snow  or  water  in  irrigation  district. 
Section  2626.] 

3354.  District  number  one. — Sec.  190.     That  water  district 
No.  1  shall  consist  ,of  all  lands  in  the  State  of  Colorado  irrigated 
by  waters  taken  from  that  portion  of  the  South  Platte  river  be- 
tween the  mouth  of  the  Cache  la  Poudre  river  and  the  west  boun- 
dary line  of  Washington  county,  and  from  the  streams  draining 


75 


VII.     WATER  DISTRICTS— WATER  COMMISSIONERS. 


A.  BOUNDARIES  OF  WATER  DISTRICTS. — 3353-3426. 

B.  WATER  COMMISSIONERS. — 3427-3439. 


A.     BOUNDARIES  OF  WATER  DISTRICTS. 


Section. 

3353.  Lands  watered  constitute 

districts. 

3354.  District  number  one. 

3355.  District  number  two. 

3356.  District  number  three. 

3357.  District  number  four. 

3358.  District  number  five. 

3359.  District  number  six. 

3360.  District  number  seven. 

3361.  District  number  eighl. 

3362.  District  number  nine. 

3363.  District  number  ten — New 

districts  formed  by  gov- 
.   ernor. 

3364.  District  number  eleven. 

3365.  District  number  twelve. 

3366.  District  number  thirteen. 

3367.  District  number   fourteen. 

3368.  District  number  fifteen. 

3369.  District  number  sixteen. 

3370.  District  number    seven- 

teen. 

3371.  District  number   eighteen. 

3372.  District  number  nineteen. 

3373.  District  number  twenty. 

3374.  District  number      twenty- 

one. 

3375.  District    number    twenty- 

two. 

3376.  District    number    twenty- 

three. 

3377.  District    number    twenty- 

four. 

3378.  District    number    twenty- 

five. 

3379.  District    number    twenty- 

six. 

3380.  District    number    twenty- 

seven. 

3381.  District    number    twenty- 

eight. 

3382.  District    number    twenty- 

nine. 

3383.  District  number  thirty. 

3384.  District     number     thirty- 

one. 

3385.  District     number     thirty- 

two. 


Section. 

3386. 

District     number     thirty- 

three. 

3387. 

District     number     thirty- 

four. 

3388. 

District     number     thirty- 

five. 

3389. 

District     number     thirty- 

six. 

3390. 

District     number     thirty- 

seven. 

3391. 

District     number     thirty- 

eight. 

3392. 

District     number     thirty- 

nine. 

3393. 

District  number  forty. 

3394. 

District  number  forty-one. 

3395. 

District  number  forty-two. 

3396. 

Same. 

3397. 

District    number    forty- 

three. 

3398. 

District    number    forty- 

four. 

3399. 

District    number    forty- 

five. 

3400. 

District  number  forty-six. 

3401. 

District    number    forty- 

seven. 

3402. 

District    number    forty- 

eight. 

3403. 

District    number    forty- 

nine. 

3404. 

District  number  fifty. 

3405. 

District  number  fifty-one. 

3406. 

District  number  fifty-two. 

3407. 

District    number    fifty- 

three. 

3408. 

District    number    fifty- 

four. 

3409. 

District    number    fifty- 

five. 

3410. 

District    number    fifty- 

six. 

3411. 

District    number    fifty- 

seven. 

3412. 

District    number    fifty- 

eight. 

3413. 

District    number    fifty- 

nine. 

76 


Section. 

3414.  District  number  sixty. 

3415.  District  number  sixty-one. 

3416.  District  number  sixty-two. 

3417.  District    number    sixty- 

three. 

3418.  District   number    sixty- 

four. 

3419.  District    number    sixty- 

five. 

3420.  District    number    sixty- 

six. 


Section. 

3421.  District   number    sixty- 

seven. 

3422.  District    number    sixty- 

eight. 

3423.  District   number    sixty- 

nine. 

3424.  District    number    seventy. 

3425.  Same — Expenses    of   com- 

missioner. 

3426.  Jurisdiction  of  courts  over 

district. 


into  the  said  portion  of  the  South  Platte  river.  [L.  '89,  p.  212, 
§13;  amending  L.  '87,  p.  303,  §1;  which  amended  G.  S.,  §1742;  L. 
'79,  p.  97,  §6. 

3355.  District  number  two. — Sec.  191.     That  district  No.  2 
shall  consist  of  land  irrigated  from  ditches  taking  water  from 
the  South  Platte  river  and  its  tributaries,  except  Big  Thompson, 
St.  Vrain  and  Clear  Creek,  between  the  mouth  of  the  Cache  la 
Poudre  and  the  mouth  of  Cherry  Creek.     [G.  S.,  §1743;  L.  '79.  p. 

97,  §7. 

3356.  District  number  three.— Sec.  192.     That  district  No.  3 
shall  consist  of  all  lands  irrigated  from  ditches  taking  water 
from  the  Cache  la  Poudre  and  its  tributaries.     [G.  S.,  §1744 ;  L. 
79,  p.  98,  §8. 

3357.  District  number  four.— Sec.  193.     That  district  No.  4 
shall  consist  of  all  lands  irrigated  from  ditches  taking  water  from 
the   Big  Thompson    and   its   tributaries.     [G.  S.,  §1745;  L. '79,  p. 

98,  §9. 

3358.  District  number  five. — Sec.  194.     That  district  No.  c 
shall  consist  of  all  lands  irrigated  from  ditches  taking  water 
from  the  St.  Vrain  creek  and  its  tributaries,  except  the  Boulder, 
its  tributaries,  and  Coal  creek.     [G.  S.,  §1746;  L.  '79,  p.  98,  §10. 

3359.  District  number  six. — Sec.   195.     That  district  No.   G 
shall  consist  of  all  lands  irrigated  from  ditches  taking  wrater 
from  the  Boulder  and  its  tributaries,  and  Coal  creek.     [G.  S., 
§1747  ;L. '79,  p.  98,  §11. 

3360.  District  number  seven.— Sec.  190.     That  district  No.  7 
shall  consist  of  all  lands  irrigated  from  ditches  taking  water 
from  Clear  creek    and    its    tributaries.    [G.  S.,  §1748;  L.  '79,  p. 
98,  §12. 

3361.  District  number  eight. — Sec.  197.     That  water  district 
No.  8  shall  consist  of  all  lands  irrigated  by  ditches  taking  water 
from  Cherry  creek,  Plum  creek  and  Platte  river  and  their  tribu- 
taries, except  Bear  creek,  above  water  district  No.  2,  and  below 
the  forks  of  the  north  and  south  branches  of  the  South  Platte 
river,  and  including  all  lands  and  ditches  in  Douglas  county.     [L. 
'99,  p.  430,  §1 ;  amending  G.  S.,  §1749 ;  L.  '79,  p.  98,  §13. 


77 

3362.  District  number  nine. — Sec.  198.     That  district  No.  9 
shall  consist  of  till  lands  irrigated  by  ditches  taking  water  from 
Bear  creek  and  its  tributaries.     [G.  S.,  §1750 ;  L.  '79,  p.  98,  §14. 

3363.  District  number  ten — New  districts  to  be  formed  by  gov- 
ernor.— Sec.  199.     That  district  N^o.  10  shall  consist  of  all  lands 
irrigated  from  ditches  taking  water  from  the  Fountain  and  its 
tributaries:  Provided.  That  said  district  shall  not  extend  beyond 
the  limits  of  El  Paso  county. 

Other  irrigation  districts  may  be  formed  from  time  to  time 
by  the  governor,  on  petition  of  parties  interested.  [G.  S.,  §1751; 
L.  '79,  p.  98,  §15. 

[The  title  of  the  act  of  April  1,  1885,  L.  '85,  p.  25G,  purports  to  amend  the 
above  section.] 

3364.  District  number  eleven. — Sec.  200.     Water  district  No. 

11  shall  consist  of  all  lands  irrigated  by  water  taken  from  that 
portion  of  the  Arkansas  river  above  water  district  No.  12,  and  from 
streams  draining  into  the  said  portion  of  the  Arkansas  river.   [L. 
'89,  p.  369,  §1 ;  amending  L.  '85,  p.  250,  §4. 

3365.  District  number  twelve. — Sec.  201.     That  district  No. 

12  shall  consist  of  all  lands  irrigated  from  ditches  or  canals  tak- 
ing water  from  that  part  of  the  Arkansas  river  lying  in  Fremont 
county;  also,  lands  irrigated  from  ditches  or  canals  taking  water 
from  the  tributaries  of  said  portion  of  the  Arkansas  river,  except 
Texas  creek,  and  its  tributaries,  and  that  part  of  Grape  creek 
which  lies  above  the  south  line  of  said  Fremont  county.     [L.  '95, 
p.  198,  §1;  amending  L.  '93,  p.  301,  §1;  which  amended  L.  '85,  p. 
257,  §5. 

L.  '93,  p.  301,  §1 ;  which  amended  L.  '85,  p.  257,  §5. 

3366.  District  number  thirteen.— Sec.  202.     That  district  No. 

13  shall   consist  of   all   lands   irrigated   from   ditches  or  canals 
taking  water  from  Texas  creek  and  its  tributaries  and  that  part 
of  Grape  creek  and  its  tributaries  lying  in  Ouster  county.     [L. 
'95,  j).  198,  §2;  amending  L.  '93,  p.  301,  §1  ;  which  amended  L.  *S5, 
p.  257,  §0. 

3367.  District    number    fourteen. — Sec.  203.     Water  district 
No,  14  shall  consist  of  all  lands  irrigated  by  water  taken  from 
that  portion  of  the  Arkansas  river  situated  within  the  boundaries 
of  Pueblo  county  and  from  the  streams  draining  into  the  said 
portion  of  the  Arkansas  river,  except  the  St.  Charles  and  Huerfa- 
no  rivers  and  their  tributaries,  and  except  also  that  portion  of 
the  Fountain  embraced  in  water  district  No.  10,  and  the  streams 
draining  into  the  said  portion  of  the  fountain.     [L.  '89,  p.  310.  £2; 
amending  L.  '85,  p.  25f ,  §7. 

3368.  District  number  fifteen. — Sec.  204.     That  district   No. 
15  shall   consist  of  all   lands  irrigated  from  ditches,  or  canals. 


78 

taking  water  from  the  St.  Charles  and  its  tributaries.     [L.  '85, 
p.  257,  §8. 

3369.  District  number  sixteen. — Sec.  205.     That  district  No. 
16  shall  consist  of  all  lands  irrigated  from  ditches  and  canals 
taking  water  from  the  Huerfano  and  its  tributaries.     [L.  '85;  p. 
257,  §9. 

3370.  District  number  seventeen. — Sec.  206.     Water  district 
No.  17  shall  consist  of  all  lands  irrigated  by  water  taken  from 
that  portion  of  the  Arkansas  river  below  water  district  No.  14 
and  above  the  mouth   of  the  Purgatoire    river,  and    from  the 
streams  draining  into  the  said  portion  of  the  Arkansas  river,  ex- 
cept the    Apishapa  river  and  its  tributaries.    [L.  89,  p.  370,  §3; 
amending  L.  '85,  p.  257,  §10. 

3371.  District  number  eighteen.— Sec.  207.     That  district  No. 
1.8  shall  consist  of  all  lands  irrigated  from  ditches  and  canals 
taking  water  from  the  Apishapa  and  its  tributaries.     [L.  '85,  p. 
257,  §11. 

3372.  District  number  nineteen.— Sec.  208.     That  district  No. 
19  shall .  consist  of  all  lands  irrigated  from  ditches,  or  canals, 
taking  water  from  the  Purgatoire  and  its  tributaries.     [L.  '85;  p. 
257,  §12. 

3373.  District    number    twenty. — Sec.  209.       Water  district 
No.  20  shall  consist  of  all  lands  irrigated  by  water  taken  from 
that  portion  of  the  Rio  Grande  above  the  mouth  of  the  Rio  Cono- 
jos,  and  from  the  streams  draining  into  the  said  portion  of  the 
Rio  Grande,  including  Piedra,  Spring,  Gato  and  San  Francisco 
creeks,  and  all  other  streams  that  would  in  time  of  flood  flow 
into  the  said  portion  of  the  Rio  Grande,  although  at  ordinary 
stages  the  waters  thereof  might  not  flow  upon  the  surface  to  the 
Rio  Grande,  except  Alamosa  river  and  its  tributaries  and  the  La 
Jara  and  Trinchera  creeks  and  their  tributaries;  Provided,  That 
nothing  in  this  act  shall  be  construed  as  inconsistent  with  the 
provisions  of  the  acts  creating  water  districts  numbered  twenty- 
five,  twenty-six  and  twenty -seven.     [L.  '89,  p.  218,  §1 ;  amending  L. 
'87,  p.  301,  §§1  and  2,  which  amended  L.  '85,  p.  258,  §§13  and  16. 

3374.  District  number  twenty-one. — Sec.  210.     That  district 
No.  21  shall  consist  of  all  lands  irrigated  from  ditches  or  canals 
taking  water  from  the  Alamosa  and  La  Jara  creeks  and  their 
tributaries.     [L.  '85,  p.  258,  §14. 

3375.  District  number  twenty-two.— Sec.  211.     Tliat  district 
No.  22  shall  consist  of  all  lands  in  the  state  of  Colorado  irrigated 
from  ditches  or  canals  taking  water  from  Conejos  creek  and  its 
tributaries.     [L.  '85,  p.  258,  §15. 

3376.  District   number   twenty-three. — Sec.  212.     Water  dis- 
trict No.  23  shall  consist  of  all  lands  in  the  state  of  Colorado 


79 

being,  or  to  be,  irrigated  from  ditches  or  canals  taking  water 
from  the  South  Platte  river,  and  from  any  of  its  direct,  or  in- 
direct, tributaries,  at  any  point  or  points  above  water  district 
No.  8,  in  the  said  state,  and  all  lands  upon  the  tributaries  of  the 
Arkansas  river  which  lie  within  the  boundaries  of  Park  county. 
[L.  '99,  p.  431,  §1 ;  amending  L.  '89,  p.  212,  69. 

3377.  District    number    twenty-four. — Sec.  213.     Water  dis- 
trict No.  24  shall  consist  of  all  lands  in  the  state  of  Colorado  ir- 
rigated by  water  taken  from  that  portion  of  the  Rio  Grande  be- 
tween the  mouth  of  the  Rio  Conejos  and  the  Colorado  state  line, 
from  the  streams  draining  into  the  said  portion  of  the  Rio  Grande 
and  from  Costilla  creek,  and  the  streams  draining  into  Costilla 
creek.    [L.  '89,  p.  370,  §4;  amending  L.  '85,  p.  258,  §17. 

3378.  District    number    twenty-five.— Sec.  214.     That  water 
district  No.  25  shall  consist  of  all  lands  irrigated  by  water  taken 
from  the  San  Luis  creek  and  all  its  tributaries.     [L.  '99,  p.  237, 
§1;  amending  L.  '89,  p.  370,  §5;  amending  L. '85,  p.  258,  §18. 

3379.  District   number   twenty-six. — Sec.  215.     That  district 
No.  26  shall  consist  of  all  lands  irrigated  from  ditches,  or  canals, 
taking  water  from  Saguache  creek  and  its  tributaries.     [L.  '85, 
p.  258,  §19. 

3380.  District    number    twenty-seven. — Sec.  216.     That  dis- 
trict No.  27  shall  consist  of  all  the  lands  irrigated  from  ditches, 
or  canals,  taking  water  from  Tuttle,  Carnero,  La  Garita,  and  all 
other  creeks,  and  their  tributaries,  which  have  their  sources  of 
water  supply  in  the  La  Garita  mountains  and -flow  eastward  into 
the  San  Luis  valley.    [L.  '85,  p.  258,  §20. 

3381.  District  number  twenty-eight.— Sec.  217.     That  district 
No.  28  shall  consist  of  all  lands  irrigated  from  ditches,  or  canals, 
taking  water  from  the  Tomichi  and  its  tributaries.     [L.  '85,  p. 
259,  §21. 

3382.  District  number  twenty-nine. — Sec.  218.     That  district 
No.  29  shall  consist  of  all  lands  lying  in  the  state  of  Colorado 
irrigated  from  ditches,  or  canals,  taking  water  from  that  part 
of  the  San  Juan  river,  and  its  tributaries,  which  lie  above  the 
junction  of  the  San  Juan  river  and  the  Rio  Piedra,  and  including 
the  Rio  Piedra.     [L.  '85,  p.  259,  §22. 

3383.  District  number  thirty.— Sec.  219.     That  district  No. 
30  shall  consist  of  all  lands  lying  in  the  state  of  Colorado  irri- 
gated from  ditches,  or  canals,  taking  water  from  that  part  of  the 
Rio  Las  Animas  river,  and  its  tributaries,  which  lie  in  Colorado. 
[L. '85,  p.  259,  §23. 

3384.  District    number    thirty-one. — Sec.  220.     That  district 
No.  31  shall  consist  of  all  lands  in  the  state  of  Colorado  irrigated 
from  ditches,  or  canals  taking  water  from  that  part  of  the  Los 


80 

Pinos  river,  and  its  tributaries,  which  lie  in  Colorado.     [L.  '85, 
p.  259,  §24. 

3385.  District  number  thirty-two. — Sec.  221.     Water  district 
No.  32  shall  consist  of  all  lands  in  the  state  of  Colorado  irrigated 
by  water  taken  from  those  natural  streams  which  drain  into  the 
San  Juan  river,  and  are  not  included  in  water  districts  numbers 
29,  30,  31,  33  and  34.     [L. '89,  p.  371,  §6;  amending  L.  '85,  p. 
259,  §25. 

3386.  District  number  thirty-three. — Sec.  222.     That  district 
No.  33  shall  consist  of  all  lands  lying  in  the  state  of  Colorado 
irrigated  from  ditches,  or  canals,  taking  water  from  the  La  Plata 
river,  and   its  tributaries,   which    lie    in   Colorado.      [L.  '85,   p. 
259,  §26. 

3387.  District    number    thirty-four.— Sec.    223.     That    water 
district  No.  34  shall  consist  of  all  lands  lying  in  the  state  of  Colo- 
rado,  irrigated  from   ditches  or  canals  taking  water  from  the 
Kio  Mancos,   and  its   tributaries ;   and  also  all   lands  irrigated 
from  ditches  or  canals  taking  wrater  from  that  part  of  the  Dolores 
river  within  the  boundaries  of  said  Montezuma  county,  and  from 
streams  draining  into  said  portion  of  Dolores  river.    [L.  '97,  p. 
175,  §1 ;  amending  L.  '85,  p.  259,  §27. 

3388.  District  number  thirty-five.— Sec.  224.     That  water  dis- 
trict No.  3£  shall  consist  of  all  lands  lying  in  the  county  of  Cos- 
tilla,  in  this  state,  watered  by  the  Trinchera  creek,  Sand  or  Me- 
dano  creek,  Big  Spring  creek,  Little  Spring  creek,  Mosca  creek. 
North  and  South  Zapato  creeks,   Sierra  Blanea  creek,  and  all 
streams  draining  into  the  said  creeks,  and  all  other  streams  be 
tween   said  Trinchera   creek  and   said   Sand   or    Medano   creek. 
[L.  '99,  p.  237,  §2;  amending  L.  -87,  p.  307,  §1. 

3389.  District   number   thirty-six.— Sec.    225.     That    district 
No.  36  shall  consist  of  all  the  lands  irrigated  from  water  taken 
from  the  Blue  river  and  its  tributaries.    [L.  '87,  p.  313,  §3. 

3390.  District  number  thirty-seven. — Sec.  226.     That  district 
No.  37  shall  consist  of  lands  all  lying  in  the  state  of  Colorado 
irrigated  by  waters  taken  from  the  Eagle  river  and  its  tribu- 
taries.    [L.  '87,  p.  313,  §4. 

3391.  District  number  thirty-eight.— Sec.  227.     That  district 
No.  38  shall  consist  of  all  the  lands  lying  in  the  state  of  Colo- 
rado irrigated  by  water  taken  from  the  Roaring  Fork  river  and 
its  tributaries.     [L.  '87,  p.  313,  §5. 

3392.  District   number    thirty-nine.— Sec.  228.     The  bounda- 
ries of  water  district  No.  39  are  hereby  defined  to  include  all  th<^ 
tributaries  of  Grand  river  on  the  north  side  thereof,  from  the 
mouth  of  the  Roaring  Fork  river,  westerly  to  the  state  line;  and 


81 

shall  consist  of  all  lands  lying  in  the  state  of  Colorado,  irrigated 
by  any  and  all  such  tributaries,  excepting  Roan  creek,  and  its 
tributaries,  and  all  lands  irrigated  thereby;  and  excepting  also 
all  lands  lying  in  Mesa  county.  The  said  water  district  No.  39 
shall  include  only  all  the  lands  in  Garfield  county,  above  de- 
scribed, and  which  are  not  irrigated  from  Roan  creek  or  any  of 
its  tributaries.  [L.  '().">.  p.  243,  $1 ;  amending  L.  '87,  p.  314,  §6. 

[For  jurisdiction  of  district  court  over  district  No.  .39,  see  section  3426.] 

3393.  District  number  forty.— Sec.  229.     That  water  district 
No.  40  shall  consist  of  all  lands  irrigated  from  ditches  taking 
water  from  Crystal  creek  and  Smith's  fork,  Escalante  creek,  and 
their  tributaries,  all  lands  lying  within  the  boundaries  of  Delta 
county  irrigated   from   the   Gunnison   river  and   its  tributaries, 
(except  lands  irrigated  from  the  Fncompahgre  river  and  its  trib- 
utaries), and  all  lands  in  the  county  of  Delta  and  the  .county  of 
Gunnison  irrigated  by  ditches  taking  their  water  from  the  north 
fork  of  the  Gunnison   river  and  its  tributaries.     [L.  '03,  p.  296, 
§1 ;  amending  L.  '87,  p.  311,  §2. 

3394.  District    number    forty-one.— 'Sec.    230.     That    district 
No.  41  shall  consist  of  all  lands  irrigated  from  ditches  or  canals 
taking  water  from  the  Uncompahgre  river  and  its  tributaries, 
except   so   much   as  are   within  the  boundary  lines    of    On  ray 
county.     [L.  '87,  p.  311,  §3. 

3395.  District    number    forty-two. — Sec.  231.     That  district 
Xo.   42   shall   consist   of   all   lands   irrigated  from   ditches   and 
canals  taking  water  from  the  Grand  and  Gunnison  rivers  and 
their  tributaries  within  the  county  of  Mesa,  except  Escalante 
creek.     [L.  '03,  p.  290.  §2 ;  amending  L.  '87,  p.  311,  §4. 

3396  Same. — Sec.  232.  The  boundaries  of  water  district 
Xo.  42  shall  not  be  construed  to  include  any  land  hereinabove 
embraced  in  either  of  said  water  districts,  39  or  70  [L.  '05, 
p.  243,  §:*. 

[For  attachment  of  district  42  for  adjudication  of  priorities,  see  section  3426.] 

3397.  District    number    forty-three. — Sec.  233.     That  water 
district  Xo.  43   is  hereby  established,  and  shall  consist  of  all 
lands  irrigated  by  ditches  taking  water  from  the  White  river 
and  its  tributaries.     [L.  '87,  p.  307,  §1. 

3398.  District  number  forty-four.— Sec.  234.     That  water  dis- 
trict Xo.  44  shall  consist  of  all  lands,  irrigated  by  water  taken 
from  that  portion  .of  the  Yampa  river  above  the  mouth  of  the 
Little  Snake  river  and  below  the  mouth  of  Fortification  creek, 
and   from   the   streams   draining   into   the   said   portion   of   the 
Yampa  river.     [L.  '89,  p.  211,  §2;  amending  L.  '87,  p.  300,  §1. 

3399.  District  number  forty-five. — Sec.  235.     That  water  dis- 
trict Xo.  45  shall  consist  of  all  lands  situated  on  the  south  side 


82 

of  the  Grand  river  and  irrigated  from  ditches  or  canals  taking 
water  from  the  Grand  river  and  its  tributaries,  between  the 
mouth  of  Roaring  Fork  river  and  the  north  line  of  Mesa  county. 
[L.  '89,  p.  213,  §17. 

3400.  District  number  forty-six. — Sec.  236.     That  water  dis- 
trict No.  46  shall  consist  of  all  lands  irrigated  by  water  taken 
from  that  portion  of  the  North  Platte  river  above  the  mouth  of 
Michigan  creek,  and  from  the  streams  draining  into  the  said 
portion  of  the  North  Platte  river.     [L.  '89,  p.  212,  §10. 

3401.  District    number    forty-seven. — Bee.  237.     That  water 
district  No.  47  shall  consist  of  all  lands  in  the  state  of  Colo- 
rado irrigated  by  water  taken  from  that  portion  of  the  North 
Platte  river  between  water  district  No.  46  and  the  state  line 
of  Colorado,  <and  from  the  streams  draining  into  the  said  portion 
of  the  North  Platte  river,  and  fro  niGranite  and  Encampment 
creeks  and  the  streams  draining  into  the  said  creeks.     [L.  '89, 
p.  212,  §11. 

3402.  District    number    forty-eight. — Sec.  238.     That  water 
district  No.  48  shall  consist  of  all  lands  in  the  state  of  Colorado 
irrigated  by  water  taken  from  the  Big  Laramie  river  and  from 
the  streams  draining  into  the  said  river.     [L.  '89,  p.  212,  §12. 

3403.  District  number  forty-nine.— Sec.  239.     That  water  dis- 
trict No.  49  shall  consist  of  all  lands  in  the  state  of  Colorado 
irrigated  by  water  taken  from  the  south  fork  of  the  Republi- 
can river  and  the  Sniokey  Hill  river,  and  the  streams  draining 
into  the  said  rivers.     [L.  '89,  p.  471,  §1. 

3404.  District  number  fifty.— Sec.  240.     That  water  district 
No.  50  shall  consist  of  all  lands  irrigated  by  water  taken  from 
the  Muddy  and  Troublesome  creeks,  and  from  the  streams  drain- 
ing into  the  said  creeks.     [L.  '89,  p.  213,  §18. 

3405.  District  number  fifty-one. — Sec.  241.     That  water  dis- 
trict No.  51  shall  consist  of  all  lands  irrigated  by  water  taken 
from  the  Grand  river  above  the  mouth  of  the  Blue  river,  and 
from  the  streams  draining  into  the  said  portion  of  the  Grand 
river,    except    the    Muddy    and    Troublesome    creeks    and    the 
streams  draining  into  the  said  creeks.     [L.  '89,  p.  213,  §19. 

3406.  District  number  fifty-two.— Sec.  242.     That  water  dis- 
trict No.  52  shall  consist  of  all  lands  on  the  south  side  of  the 
Grand   river   irrigated   by   water  taken   from  the   Grand   river 
below  the  mouth  of  Blue  river  and  above  the  mouth  of  Roaring 
Fork  river,  and  from  the  streams  draining  into  the  said  portion 
of  the  Grand  river,  except  Eagle  river  and  its  tributaries.     [L. 
'89,  p.  213,  §20. 


83 

3407.  District  number  fifty-three. — Sec.  243.  That  water  dis- 
trict No.  53  shall  consist  of  all  lands  on  the  north  side  of  the 
Grand  river  irrigated  by  water  from  that  portion  of  the  Grand 
river  below  the  mouth  of  Muddy  creek  and  above  the .  mouth  of 
Koaring  Fork  river,  and  from  the  streams  draining  into  the 
said  portion  of  the  Grand  river.  [L.  -'89,  p.  214,  §21. 

3408  District  number  fifty-four. — Sec.  244.  That  water  dis- 
trict No.  54  shall  consist  of  all  lands  in  the  state  of  Colorado 
irrigated  by  water  taken  from  that  portion  of  the  Little  Snake 
river  and  its  tributaries  above  the  most  westerly  intersection  of 
said  river  with  the  Colorado  state  line.  [L.  '89,  p.  211,  §3. 

3409.  District  number  fifty-five.— Sec.  245.     That  water  dis- 
trict Xo.  55  shall  consist  of  all  lands  in  the  state  of  Colorado 
irrigated  by  water  taken  from  that  portion  of  the  Yampa  river 
below  water  district  Xo.  44,  and  from  the  streams  draining  into 
tUe  said  portion  of  Yampa  river  not  included  in  wTater  district 
Xo.  54.     [L.  '89,  p.  211,  *4. 

3410.  District  number  fifty-six. — Sec.  240.     That  water  dis- 
trict Xo.  56  shall  consist  of  all  lands  in  the  state  of  Colorado 
irrigated  by  water  taken  from  that  portion  of  the  Green  river 
embraced  within  the  boundaries  of  the  county  of  Routt,  and 
from  the  streams  draining  into  the  said  portion  of 'the  Green 
river,  except  the  Yampa  river  and  its  tributaries.     [L.  '89,  p. 
211,  §5. 

3411.  District  number  fifty-seven. — Sec.  247.     That  water  dis- 
trict Xo.  57  shall  consist  of  all  lands  irrigated  by  water  taken 
from  that  portion  of  the  Yampa  river  above  water  district  Xo, 
44  and  below  the  mouth  of  Elk  creek,  and  from  the  streams 
draining  into  the  said  portion  of  the  Yampa  river.     [  L.  '89, 
}).  211,  §6. 

3412.  District  number  fifty-eight. — Sec.  248.     That  water  dis- 
trict Xo.  58  shall  consist  of  all  lands  irrigated  by  water  taken 
from  the  Yampa  river  above  water  district  Xo.  57,  and  from 
the  streams  draining  into  the  said  portion  of  Yampa  river.     [L. 
V.).  p.  211,  §7. 

3413.  District  number  fifty-nine. — Sec.  249.     That  water  dis- 
trict Xo.  51)  shall  consist  of  all  lands  irrigated  by  water  taken 
from  the  Gunnison  river  above  the  mouth  of  Tomichi  creek, 
and  from  all  streams  draining  into  the  said  portion  of  Gunni- 
son river;  also  of  all  lands  on  the  north  side  of  Gunnison  river 
below  the  mouth   of  Tomichi   creek  and  above  water  district 
Xo.  40,  and  from  the  streams  draining  into  the  said  portion  of 
the  Gunnison  river.     [L.  '89,  p.  214,  §22. 

3414.  District  number  sixty.— Sec.  250.     That  water  district 
Xo.  60  shall  consist  of  all  lands  irrigated  by  water  taken  from 


84 

the  San  Miguel  river  and  from  the  streams  draining  into  the 
said  river.     [L.  '89,  p.  214,  Si>3. 

3415.  Bistrict  number  sixty-one. — Sec.  251.     That  water  dis- 
trict No.  61  shall  consist  of  all  lands  in  the  state  of  Colorado 
irrigated  from  that  portion  of  Dolores  river  between  the  month 
of  San  Miguel  river  and  the  county  line  of  Dolores  county,  and 
from  streams  draining  into  the  said  portion  of  Dolores  river. 
LL.  '97,  p.  175,  §2;  amending  L.  '89,  p.  214,  §24. 

3416.  District  number  sixty-two. — Sec.  252.     That  water  dis- 
trict No.  62  shall  consist  of  all  lands  south  of  the  Gunnison 
river  irrigated  by  water  taken  from  the  Gunnison  river  below 
the  mouth  of  Tomichi  creek  and  above  water  district  No.  40, 
and  from   the   streams   draining  into   the   said   portion   of   the 
Gunnison  river.     [L.  '89,  p.  214,  §25. 

3417.  District    number    sixty-three. — Sec.   25:?.     That  water 
district  No.  63  shall  consist  of  all  lands  in  the  state  of  Colorado 
irrigated  by  water  taken  from  that  portion  of  the  Dolores  river 
below  the  mouth  of  the  San  Miguel  river  and  from  the  streams 
draining  into  the  said  portion   of  the  Dolores  river.      [L.   '89, 
p.  214,  §26. 

3418.  District  number  sixty-four. — Sec.  254.     That  water  dis- 
trict No.  64  shall  consist  of  all  lands  irrigated  by  water  taken 
from  that  portion  of  the  South  Platte  river  between  the  west- 
ern boundary  line  of  Washington  county  and  the  state  line  of 
Colorado  and  Nebraska,  and  from  the  streams  draining  into  the 
said  portion  of  the  South  Platte  river.     [L.  '89,  p.  213,  §14. 

3419.  District  number  sixty-five. — Sec.  255.    That  water  dis- 
trict No.  65  shall  consist  of  all  lands  in  the  state  of  Colorado 
irrigated  by  water  taken  from  the  middle  and  north  forks  of 
the  Republican  river,  from  Sandy  and  Frenchman's  creeks,  and 
the  tributaries  of  these  streams.     [L.  '89,  p.  213,  §15. 

3420.  District  number  sixty-six. — Sec.  256.     That  water  dis- 
trict No.  66  shall  consist  of  all  lands  in  the  state  of  Colorado 
irrigated    by    water   taken    from   the   Dry   Cimarron     and     the 
streams  draining  into  the  said  river.     [L.  '89,  p.  472,  §2. 

3421.  District  number  sixty-seven. — Sec.  257.       That  water 
district  No.  67  shall  consist  of  all  lands  in  the  state  of  Colorado 
irrigated   by  water  taken  from  that  portion  of  the  Arkansas 
river  below  the  mouth  of  the  Purgatoire   river,   and  from  the 
streams  draining  into  the  said  portion  of  the  Arkansas  river. 
[L.  '89,  p.  472,  §3. 

3422.  District  number  sixty-eight. — Sec.  258.     Water  district 
No.  68  shall  consist  of  all  lands  irrigated  by  wTater  taken  from 
that   portion   of  the  Uncompahgre   river   above   water   district 


No.   41,  antf  from   the  streams  draining  into   the   said  portion 
of  the  Uncompahgre  river.     [L.  '89,  p.  213,  §16. 

3423.  District  number  sixty-nine. — Sec.  259.     That  water  dis- 
trict Xo.  69  shall  consist  of  all  lands  lying  in  the  state  of  Colo- 
rado irrigated  from  ditches  or  canals  taking  water  from  those 
portions  of  the  Dolores  river  within  Dolores  county,  and  from 
streams  draining  into  said  portion   of  the  Dolores   river.      [L. 
'97,  p.  175,  *;{. 

3424.  District  number  seventy. — Sec.  260.     That  water  dis- 
trict No.  70  shall  consist  of  all  lands  irrigated  by  water  taken 
from   Roan    creek   and   all   its   tributaries   situated   within   the 
counties  of  (larfield  and  Mesa,  in  this  state,  and  also  all  lands 
in  Mesa  county  situate  north  of  Grand  river  and  east  of  Roan 
creek.     [L.  '05,  p.  243,  *2. 

3425.  Same — Expenses     of     commissioner. — Sec.     261.       All 
charges  of  the  water  commissioner  and  his  deputies,  that  may 
be  appointed   for   said   water   district   No.   70,   shall   be   borne 
equally  between  the  counties  of  Garfield  and  Mesa.      [L.   '05, 
p.  244,  §6. 

3426.  Jurisdiction    of    courts    over   districts. — Sec.  262.     The 
district  court  of  Garfield  county  shall  retain  and  have  jurisdic- 
tion over  the  adjudication  of  water  rights  and  priorities  in  said 
water  districts  Xos.  39  and  70,  and  the  district  court  of  Mesa 
county  shall   retain  and  have  jurisdiction  of  water  rights  and 
priorities  in  said  water  district  No.  42.     [L.  '05,  p.  244,  §5. 


B.     WATER  COMMISSIONER. 


Section. 

3434.     Pay    of    commissioner — 

Accounts — District   in 

two  counties. 


Section. 

3427.  Water  commissioners — • 

—Appointment  —  Term 
of  office — Bond. 

3428.  Vacancies,  how  filled — Re- 

moval. 

3429.  Take  oath  of  office  within 

ten  days. 

3430.  Commissioner  begin  work 

when  called  on. 

3431.  Commissioner    to    devote 

entire  time — Neglect. 

3432.  Duty    of    commissioner- 

Open  and  shut  head- 
gates. 

3433.  Powers  of  commissioner — 

Commissioner  subordi- 
nate to  state  and  di- 
vision engineers. 

3427.     Water    commissioners — Appointment — Term    of    office — 
Bond. — Sec.   263.     There   shall   be  one  water  commissioner  for 


3435. 


3436. 


3437. 


3438. 


3439. 


Deputy  commissioner — 
Appointment — Salary. 

Commissioner  may  em- 
ploy assistance — Salary. 

Accounts  kept  of  assist- 
ants' time. 

Commissioner  inspect 
ditches— Waste  of  water. 

Failure  of  commissioner 
to  perform  duty — Pen- 
alty. 


86 

each  of  the  above  named  districts,  and  for  each  district  here- 
after formed,  who  shall  be  appointed  by  the  governor,  to  be 
selected  by  him  from  persons  recommended  to  him  by  the  sev- 
eral boards  of  county  commissioners  of  the  counties  into  which 
water  districts  may  extend;  and  the  water  commissioner  so 
appointed,  shall,  before  entering  upon  his  duties,  give  a  good 
and  sufficient  bond  for  the  faithful  discharge  of  his  duties,  with 
not  less  than  three  sureties,  in  a  sum  not  less  t'han  one  thousand 
nor  more  than  five  thousand  dollars,  the  amount  of  said  bond 
to  be  fixed  by  the  county  commissioners,  and  approved  by  the 
governor  and  state  engineer.  The  commissioner  so  appointed 
shall  hold  his  office  until  his  successor  is  appointed  and  quali- 
fied; Provided,  however,  That  if  such  water  district  shall  be 
embraced  in  more  than  one  county,  and  the  several  counties 
in  which  such  water ,  district  is  situated,  disagree  as  to  the 
amount  of  the  bond  as  herein  required  of  water  commissioners, 
then  and  in  that  event  the  governor  shall  fix  the  amount  there- 
of, with  the  same  effect  as  though  fixed  by  the  county  commis- 
sioners. [L.  '87,  p,  302,  §1;  amending  G.  S.,  §1752;  L.  '79, 
p.  98,  §16. 

3428.  Vacancies,  how  filled — Removal. — Sec.  264.     The  gov- 
ernor shall,  by  like  selection  and  appointment,  fill  all  vacancies 
which  may  be  occasioned  by  death,   resignation  or   continued 
absence  from  the  district,  removal,  or  otherwise.     Said  county 
commissioners  may,  from  time  to  time,  recommend  persons  to 
be  appointed  as  above  provided,  and  the  governor  may,  at  any 
time,  remove  any  water  commissioner,  in  his  discretion.     [L.  '87, 
p.  303,  §2. 

3429.  Oath  of  office  within  ten  days.— Sec.  265.     That  within 
ten  days  after  his  appointment,  and  before  entering  upon  the 
duties  of  his  office,   such   water   commissioner  shall   take  and 
subscribe  the  oath  of  office  prescribed  by  the  constitution  of 
this  state.     [G.  S.,  §1753;  L.  '79,  p.  99,  §17. 

3430.  Commissioner  begin  work  when  called  on. — Sec.   266, 
Said    water   commissioners    shall    not   begin    their    work    until 
they  shall  be  called  on  by  twro  or  more  owners  or  managers  or 
persons  controlling  ditches  in  their  several  districts  by  appli- 
cation in  writing  stating  that  there  is  necessity  for  their  action ; 
and  they  shall  not  continue  performing  services  after  the  neces- 
sity therefor  'Shall  cease.     [G.  S.,  §1758;  L.  '79,  p.  107,  §42. 

[Penalty  for  failure  of  commissioner  tot  act.     Section  3258.] 

3431.  Commissioners  to  devote  entire  time — Neglect. — Sec.  267. 
It  is  hereby  made  the  duty  of  the  water  commissioner  after 
being  called  upon  to  distribute  water,  to  devote  his  entire  time 
to  the  discharge  of  his  duties  when  such  duties  are  required, 


87 

so  long  as  the  necessities  of  irrigation  in  his  district  shall 
require;  and  it  is  made  his  duty  to  be  actively  employed  on  the 
line  of  the  stream  or  streams  in  his  water  district,  supervising 
and  directing  the  putting  in  of  head-gates,  waste  gates,  keeping 
the  stream  clear  of  unnecessary  dams  or  other  obstructions, 
and  such  other  duties  as  pertain  to  a  guard  of  the  public  streams 
in  his  water  district;  and  for  wilful  neglect  of  his  duty,  he 
shall  be  liable  to  fifty  dollars  fine,  with  costs  of  suit.  [L.  '89, 
p.  471,  §6. 

[Report  of  commissioners.    Se'ction  3348.] 

3432.  Duty  of  commissioners — Open  and  shut  head-gates. — Sec. 
268.    It  shall  be  the  duty  of  said  water  commissioners  to  divide 
the  water  in  the  natural   stream  or  streams   of  their  district 
among  the  several  ditches  taking  water  from  the  same,  accord- 
ing to  the  prior  rights  of  each  respectively;  in  whole  or  in  part 
to  shut  and  fasten,  or  cause  to  be  shut  and  fastened,  by  order 
given  to  any  sworn  assistant,  sheriff  or  constable  of  the  county 
in  which  the  head  of  such  ditch  is  situated,  the  head-gates  of 
any  ditch  or  ditches  heading  in  any  of  the  natural  streams  of 
the  district,  which,  in  a  time  of  a  scarcity  of  water,  shall  not 
be  entitled  to  water  by  reason  of  the  priority  of  the  rights  of 
others  below  them  on  the  same  stream.     [G.  S.,  §1754;  L.  '79, 
p.  99,  §18. 

[When  commissioner  shall  withdraw  excess  water  from  reservoir.     Section 
3208.] 

3433.  Powers  of  commissioner — Commissioner    subordinate    to 
state  and  division  engineers. — Sec.    269.      Water    commissioners 
shall,   in  the  discharge   of  their  duties,  be  invested  with  the 
powers  of  constables,  and  may  arrest  any  person  violating  hi,s 
orders  relative  to  the  opening  or  shutting  down  of  head  gates, 
or  the  using  of  water  for  irrigation  purposes,  and  take   such 
offender  before  the  nearest  justice  of  the  peace,  who  may,  if 
such  offender  be  convicted,  fine  him  in  any  sum  not  exceeding 
one  hundred  dollars,  and,  in  default  of  the  payment  of  such 
fine,  may  imprison  him  in  the  county  jail  not  exceeding  thirty 
days;  Proridcd,  That  the  orders  of  the  superintendents  of  irri- 
gation in  their  respective  divisions,  and  the  orders  of  the  state 
engineer,  shall  be  held  at  all  times  superior  to  the  orders  of 
water   commissioners,   and   shall   relieve   any   person   acting   in 
accordance  with  such  superior  orders  from  the  penalties  herein 
provided;  And  provided,  also,  That  in  like  manner  the  orders 
issued  by  the  state  engineer  shall  be  held  superior  to  any  order 
issued  by  any  superintendent  of  irrigation.     [L.  '89,  p.  469,  §1. 

[Supervision  of  state  engineer  over  commissioners.     Section  3324.] 

3434.  Pay  of  commissioner — Accounts — District  in  two  coun- 
ties.— Sec.  270.     The  water  commissioner  shall  be  entitled   to 


88 

pay  at  the  rate  of  five  (5)  dollars  per  day  for  each  day  he  shall 
actually  be  employed  in  the  duties  of  his  office,  and  be  paid  by 
the  county  or  counties  in  which  his  irrigating  district  may  lie. 
Each  water  commissioner  shall  keep  a  just  and  itemized  ac- 
count of  the  time  spent  by  him  in  the  duties  of  his  office,  and 
shall  present  a  true  copy  thereof,  verified  by  oath,  to  the  board 
of  county  commissioners  of  the  county  in  which  his  district 
may  be,  and  said  board  of  commissioners  shall  allow  the  same; 
and  if-  said  irrigation  district  shall  extend  into  two  or  more 
counties,  then  such  water  commissioner  shall  present  his  ac 
for  his  services,  verified  as  aforesaid,  to  the  board  of  county 
commissioners  into  which  his  district  extends,  and  each  board 
of  county  commissioners  shall  pay  its  pro  rata  share  thereof. 
[L.  '9,  p.  470,  §2;  amending  L.  '85,  p.  254,  §1;  which  amended 
G.  6.,  §1756.  L.  '79,  p.  106,  §36. 

[For  payment  of  expenses  of  commissioner  of  district  No.   70,   see  section 
3426.] 

3435.  Deputy  commissioner — Appointment — Salary. — Sec.  271. 
The  water  commissioner  is  hereby  authorized  to  appoint  not  to 
exceed  two  deputies  to  speedily  make  the  examinations  provided 
for  in  section  1  of  this  act,  who  shall  be  entitled  to  the  same 
compensation,  and  to  be  paid  in  the  same  manner  as  is  by  law 
provided  for  the  payment  of  other  deputy  water  commissioners. 
[L.  '95,  p.  197,  §2. 

[Section  1  above  referred  to  is  section  3438.] 

3436.  Commissioner  may  employ  assistance — Salary. — Sec.  272. 
The  water  commissioner  is  hereby  given  power,  whenever  he  shall 
deem  it  necessary,  to  employ  a  suitable  assistant,  or  assistants, 
to  aid  him  in   the  discharge  of  his  duties;   such  assistant,   or 
assistants,  shall  take  the  same  oath  as  water  commissioner,  and 
shall  obey  his  instructions,  and  shall  be  entitled  to  pay  at  the 
rate  of  two  dollars  and  fifty  cents    (|2.50)    per  day  for  every 
day  they  are  so  employed,  to  be  paid  by  county  commissioners 
upon  the  certificates  of  the  water  commissioners.     [L.  '89,  p.  470, 
§3;  amending  by  implication,  G.  S.,  §1757;  L.  '79,  p.  107,  §41. 

3437.  Accounts    kept    of    assistant's    time. — Sec.  273.     Each 
water  commissioner  shall  keep  an  itemized  account  of  the  time 
of  each  assistant  by  him  employed,  and  shall  certify  the  same 
to  the  board  of  county  commissioners,  who  shall  pay  such  as- 
sistant, or  assistants,  in  the  same  manner  as  provided  for  pay- 
ment of  water  commissioners  in  section  two  of  this  act.     [L.  '89, 
p.  470,  §4. 

[Section  2  referred  to  is  section  3434.] 

3438.  Commissioner    inspect    ditches — Waste    of    water. — Sec. 
274.     The  water  commissioners  of  the  several  water  districts  of 
this  state  are  hereby  empowered,  and  it  is  hereby  made  their 


80 

duty,  upon  the  application  of  the  owners  of  one  or  more  ditches 
in  their  district,  to  immediately  make,  or  cause  to  be  made,  a 
thorough  examination  of  all  ditches  within  their  district  for  the 
purpose  of  ascertaining  what  use  is  being  made  by  the  owners 
of  or  consumers  of  water  from  said  ditches;  and  if  at  any  time 
he  shall  ascertain  that  the  owner  or  owners  of  any  ditch  drawing 
water  from  the  natural  streams  furnishing  water  to  his  district 
shall  be  permitting  any  of  the  waters  flowing  in  such  ditch  to 
go  to  waste,  or  to  be  wastefully,  or  extravagantly  or  wrongfully, 
used  by  its  water  consumers,  or  put  to  any  other  use  than  that 
to  which  it  is  entitled  to  be  used  in  the  order  of  priority,  at  such 
times  as  the  same  is  being  needed  by  other  appropriators,  it  shall 
be  the  duty  of  such  water  commissioners  to  immediately  shut  off 
the  supply  of  water  in  such  ditch  to  such  an  extent  as  in  his 
judgment  was  wasted,  or  extravagantly,  wastefully  or  wrongfully 
used.  [L.  '95,  p.  197,  §1. 

3439.  Failure  of  commissioner  to  perform  duties — Penalty. — 
Sec.  275.  Any  water  commissioner  who  fails  to  perform  any  of 
the  duties  imposed  upon  him  by  this  act  shall  be  deemed  guilty 
of  a  misdemeanor,  and,  upon  conviction  thereof  by  a  court  of 
competent  jurisdiction,  shall  be  fined  in  a  sum  not  less  than 
fifty  (50)  dollars  nor  more  than  five  hundred  (500)  dollars. 
[L.'  '95,  p.  198,  §3. 

[For  bribery  of  water  commissioners  see  section  1723.] 


90 


VIII.     IRRIGATION  DISTRICTS. 


Section. 

3440.  Irrigation  districts. 

3441.  Petition.  x 

3442.  Presentation     and     allow- 

ance of  petition. 
3443.,    Notice — Election. 

3444.  Same — Canvass  of  votes — 

Proclamation. 

3445.  Officers  —  E  1  e  c  t  i  o  n— 

Bond. 

3446.  Same — Election  notice. 

3447.  Same — Election      officers' 

duties. 

3448.  Same — Canvass   of   votes. 

3449.  Same — Records  —  Vacan- 

cies and  term  of  office. 

3450.  Board      of      directors — 

Officers — General  duties 
— Ratio  of  water  distri- 
bution. 

3451.  Directors  —  Meetings 

— Duties  —  D  o  m  a  i  n— 
Public  use. 

3452.  Property— Title. 

3453.  Conveyances — Suits. 

3454.  .Bonds— Elections. 

3455.  Bonds — Sale — Proceeds. 

3456.  Bonds — Payment — Lien. 

3457.  Board  of  directors — Levy. 

3458.  Assessor — Assessment. 

3459.  County  commissioners. 

3460.  District  treasurer. 

3461.  Assessment — Collection. 

3462.  Construction — Contracts. 

3463.  Claim  —  Audit — Payment 

— Financial  report. 

3464.  Expense    of    organization, 

how  defrayed. 

3465.  Crossing     streams,     high- 

ways, railroads,  state 
lands,  etc. 


Section. 

3466.  Officers'  salaries— Not  in- 

terested in  contracts. 

3467.  Limit  of  indebtedness. 

3468.  Insufficient      supply— Dis- 

tribution. 

3469.  Compensation     for     prop- 

erty taken. 

3470.  Boundaries — Change    of — 

Effect.  " 

3471.  Contiguous  territory — An- 

nexation— Petition. 

3472.  Contiguous  territory — No- 

tice. 

3473.  Contiguous     territory 

— Hearing. 

3474.  Payment. 

3475.  Boundaries — Orders. 

3476.  Order — Record — Effect. 

3477.  Records — Evidence. 

3478.  Legal  representatives  pe- 

titioners. 

3479.  Redivision     of     district — 

Election  of  officers. 

3480.  Exclusion  of  lands. 

3481.  Petition  for  exclusion. 

3482.  Same — Notice. 

3483.  Same— Hearing. 

3484.  Same— Orders. 

3485.  Order— Record— Effect. 

3486.  Division  of  district. 

3487.  Dissolution    of    district- 

Election. 

3488.  Sam6 — Canvass— Record. 

3489.  Judicial   examination  and 

confirmation. 

3490.  Same — Petition. 

3491.  Same — Notice  of  hearing. 

3492.  Same  —  Answer  —  Plead- 

ing. 

3493.  Same  —  Determination — 

Costs. 

3494.  Repeal — Saving  Clause. 


3440.  Irrigation  district. — Sec.  276.  Whenever  a  majority 
of  the  resident  freeholders  owning  lands  in  any  district  desire  to 
provide  for  the  Irrigation  of  the  same  they  may  propose  the  or- 
ganization of  an  irrigation  district  under  the  provisions  of  this 
act,  and  when  so  organized  each  district  shall  have  the  powers 
conferred  or  that  may  hereafter  be  conferred  by  law  upon  such 
irrigation  district;  Provided,  That  where  ditches,  canals  or  reser- 
voirs have  been  constructed  before  the  passage  of  this  act,  such 
ditches,  canals,  reservoirs  and  franchises,  and  the  lands  watered 
thereby,  shall  be  exempt  from  the  operation  of  this  law,  except 
such  district  shall  be  formed  to  purchase,  acquire,  lease  or  rent 


91 

such  ditches,   canals,  reservoirs  and  their  franchises.     [L    '05 
p.  246,  §1. 

3441.  Petition.— Sec.  277.     For  the  purpose  of  the  estab- 
lishment of  an  irrigation  district  as  provided  by  this  act,  a  peti- 
tion shall  be  filed  with  the  board  of  county  commissioners  of  the 
county  which  embraces  the  largest  acreage  of  the  proposed  dis- 
trict ;  said  petition  shall  state  that  it  is  the  purpose  of  petitioners 
to  organize  an  irrigation  district,  under  the  provisions  of  this 
act;  said  petition  shall  also  contain  a  general  description  of  the 
boundaries   of  such  proposed   district,   the  means  proposed   to 
supply  water  for  the  irrigation,  of  the  lands  embraced  therein, 
the  name  proposed  for  such  district  and  shall  select  a  committee 
of  three  of  said  petitioners  to  present  such  petition  to  the  board 
of  county  commissioners  as  provided  by  law,  praying  that  the 
said  board  define  and  establish  the  boundaries  of  said  proposed 
district  and  submit  the  question  of  the  final  organization  of  the 
same  to  the  vote  of  the  qualified  ejectors  resident  within  said 
proposed  district;  said  petition  shall  be  signed  by  a  majority  of 
the  resident  freeholders  within  said  proposed  district,  and  who 
shall  also  be  the  owners  in  the  aggregate  of  a  majority  of  the 
whole   number   of  acres   belonging   to   the  resident   freeholders 
within  the  said  proposed  district.     The  said  petition  shall  also 
be  accompanied  by  a  good  and  sufficient  bond,  to  be  approved  by 
said  board  of  county  commissioners  in  double  the  amount  of  the 
probable  cost  of  organizing  such  district,  conditioned  for  the 
payment  of  all  costs  incurred  in  said  proceedings  in  case  said 
organization  shall  not  be  effected,  but  in  case  such  district  is  so 
effected,  then  said  expenses  incurred  by  the  board  of  county  com- 
missioners shall  be  paid  back  to  said  county  by  said  district. 
Such  petition  shall  be  published  for  at  least  two  weeks  before 
the  time  at  which  the  same  is  to  be  presented,  in  some  newspaper 
of  general  circulation  printed  and  published  in  the  county  where 
said  petition  is  to  be  presented,  together  with  a  notice  signed 
by  the  committee. of  said  petitioners  selected  by  the  petition  for 
that  purpose  giving  the  time  and  place  of  the  presentation  of  the 
same  to  said  board  of  county  commissioners.     [L.  '05,  p.  246,  §2. 

3442.  Presentation     and     allowance     of    petition. — Sec.  278. 
When  such  petition  is  presented  and  it  shall  appear  that  the 
notice  of  the  presentation  of  said  petition  has  been  given  as 
required  by  law,  and  that  said  petition  has  been  signed  by  the 
requisite  number  of  petitioners  as  required  by  this  act,  the  com- 
missioners shall  then  proceed  to  define  the  boundaries  of  said 
proposed  district  from  said  petition  and  from  such  applications 
for  the  exclusion  of  lands  therefrom  and  the  inclusion  of  lands 
therein  as  mav  be  made  in  accordance  with  the  intent  of  this  act; 


92 

they  may  adjourn  such  examination  from  time  to  time  not  exceed- 
ing three  weeks  in  all  and  shall  by  final  order  duly  entered  define 
and  establish  the  boundaries  of  such-proposed  district;  Provided, 
That  said  board  shall  not  modify  such  proposed  boundaries  de- 
scribed in  the  petition  so  as  to  change  the  objects  of  said  petition 
or  so  as  to  exempt  from  the  operation  of  this  act  any  land  within 
the  boundaries  proposed  by  the  petition  susceptible  to  irrigation 
by  the  same  system  of  water  works  applicable  to  other  lands  in 
such  proposed  district;  nor  shall  any  land  which  will  not  in  the 
judgment  of  the  board  be  benefited  by  such  proposed  system  be 
included  in  such  district  if  the  owner  thereof  shall  make  appli- 
cation at  such  hearing  to  withdraw  the  same,  Provided,  also, 
That  contiguous  lands  not  included  in  said  proposed  district  as 
described  in  the  petition  may  upon  application  of  the  owner  or 
owners  be  included  in  such  district  upon  such  hearing. 

When  the  boundaries  of  any  proposed  district  shall  have  been 
examined  and  defined  as  aforesaid  the  county  commissioners  shall 
forthwith  make  an  order  allowing  the  prayer  of  said  petition, 
defining  and  establishing  the  boundaries  and  designating  the 
name  of  such  proposed  district.  Thereupon  the  said  commis- 
sioners shall  by  further  order  duly  entered  upon  their  record 
call  an  election  of  the  qualified  electors  of  said  district  to  be 
held  for  the  purpose  of  determining  whether  such  district  shall 
be  organized  under  the  conditions  of  this  act,  and  by  such  order 
shall  submit  the  names  of  one  or  more  persons  from  each  of  the 
three  divisions  of  said  district  as  hereinafter  provided  to  be 
voted  for  as  directors  therein,  and  for  the  purposes  of  said 
election  shall  divide  said  district  into  three  divisions  as  nearly 
equal  in  size  as  may  be  practicable  and  shall  provide  that  a 
qualified  elector  of  each  of  said  three  divisions  shall  be  elected 
as  a  member  of  the  board  of  directors  of  said  district  by  the 
qualified  electors  of  the  whole  district.  Each  of  said  divisions 
shall  constitute  an  election  precinct  and  three  judges  shall  be 
appointed  for  each  of  such  precincts,  one  of  whom  shall  act  as 
clerk  of  said  election;  Provided,,  That  in  the  hearing  of  any  such 
petition  the  board  of  county  commissioners  shall  disregard  any 
informality  therein,  and  in  case  they  deny  the  same  or  dismiss 
it  for  any  reasons  on  account  of  the  provisions  of  this  act  not 
having  been  complied  with,  which  are  the  only  reasons  upon 
which  they  shall  have  a  right  to  refuse  or  dismiss  the  same,  they 
shall  state  their  reasons  in  writing  therefor  in  detail,  which  shall 
be  entered  upon  their  records  and  in  case  these  reasons  are  not 
well  founded,  a  writ  of  mandamus  shall,  upon  proper  application 
therefor,  issue  out  of  the  district  court  of  said  county,  com- 
pelling them  to  act  in  compliance  with  this  act,  which  writ  shall 
be  heard  within  twentv  davs  from  the  date  of  its  issuance,  and 


93 

which  twenty  days  shall  be  excluded  from  the  forty  days  given 
the  commissioners  herein  to  act  upon  said  petition.  The  officers 
of  such  district  shall  consist  of  three  directors,  a  secretary  and 
treasurer.  [L.  '05,  p.  247,  $3. 

3443.  Notice — Election. — Sec.   271).     The    board    of    county 
commissioners   shall  thereupon  cause  a   notice  embodying  said 
orders   in   substance   signed   by   the   chairman   of   the   board   of 
county  commissioners  and  the  clerk  of  said  board  to  be  issued, 
given  and  published,  giving  public  notice  of  said  election,  the 
time  and  places  thereof,  the  matters  submitted  to  the  vote  of  the 
electors ;  said  notice  and  order  shall  be  published  once  a  week  for 
at  least  three  weeks  prior  to  such  election  in  a  newspaper  of 
general  circulation  in  said  county,  and  if  any  portion  of  such 
proposed  district  lies  within  any  other  county  or  counties  then 
such  order  and  notice  shall  be  published  in  a  newspaper  of  gen- 
eral circulation  published  within  each  of  said  counties. 

At  all  elections  held  under  the  provisions  of  this  act  all 
persons  shall  be  entitled  to  vote,  who  are  resident  freeholders 
of  agricultural  lands  within  said  district,  or  who  are  the  owners 
of  lands  to  the  extent  of  forty  acres  or  more  within  said  district 
and  reside  within  any  county  into  which  any  part  of  said  district 
shall  extend,  and  who  are  qualified  electors  under  the  general 
laws  of  the  state  therein  and  who  shall  have  paid  property  taxes 
upon  property  located  within  said  district  during  the  year  pre- 
ceding any  such  election.  Electors  not  residing  within  the 
district  shall  be  entitled  to  vote  only  within  the  division  of 
such  district  wherein  their  lands  or  a  major  portion  thereof 
are  located;  and  any  person  entitled  to  vote  as  aforesaid,  shall 
also  be  eligible  to  election  as  a  director  in  and  for  the  division 
in  such  district,  in  which  the  major  portion  of  his  lands  are 
located.  The  ballots  to  be  used  and  cast  at  such  election  for  the 
formation  of  such  district  shall  be  substantially  as  follows: 
"Irrigation  District — Yes,"  or  "Irrigation  District — No,"  or 
words  equivalent  thereto,  and  shall  also  contain  the  names  of 
the  persons  to  be  voted  for  as  members  of  the  board  of  directors 
of  said  district;  each  elector  may  vote  for  three  directors,  one 
from  each  division,  and  shall  indicate  his  vote  by  placing  a 
marginal  cross  upon  the  ballot  for  or  against  any  question  sub- 
mitted or  name  voted  upon  and  opposite  thereto  at  any  election 
held  under  this  act.  [L.  '07,  p.  488,  §1;  amending  L.  '05,  p. 
249,  §4. 

3444.  Same — Canvass  of  votes — Proclamation. — Sec.  280.    The 
said  board  of  county  commissioners  shall   meet  on  the  second 
Monday  next  succeeding  such  election  and  proceed  to  canvass  the 
votes  cast  thereat;  and  if,  upon  such  canvass,  it  appears  that 


94 

at  least  a  majority  of  said  legal  electors  in  said  district  have 
voted  "Irrigation  District — Yes/'  the  said  board  shall,  by  an 
order  entered  on  their  minutes,  declare  such  territory  duly  or- 
ganized as  an  irrigation  district,  under  the  name  and  style 
theretofore  designated,  and  shall  declare  the  persons  receiving, 
respectively,  the  highest  number  of  votes  for  such  several  offices, 
to  be  duly  elected  to  such  office.  Said  board  shall  cause  a  copy 
of  such  order,  including  a  plat  of  said  district,  duly  certified  by 
the  clerk  of  the  board  of  county  commissioners,  to  be  immedi- 
ately filed  for  record  in  the  office  of  the  county  clerk  of  each 
county  in  which  any  portion  of  such  lands  a-re  situated  and  no 
board  of  county  commissioners  of  any  county,  including  any 
portion  of  such  district,  sjiall,  after  the  date  of  organization  of 
such  district,  allow  another  district  to  be  formed,  including  any 
of  the  lands  of  such  district,  without  the  consent  of  the  board  of 
directors  thereof;  and  from  and  after  the  date  of  such  filing,  the 
organization  of  such  district  shall  be  complete,  and  the  officers 
thereof  shall  immediately  enter  upon  the  duties  of  their  respec- 
tive offices,  upon  qualifying  in  accordance  with  law,  and  shall 
hold  such  offices,  respectively,  until  their  successors  are  elected 
and  qualified.  For  the  purpose  of  the  election  above  provided 
for,  the  said  board  of  county  commissioners  must  establish  a 
convenient  number  of  election  precincts  and  polling  places  in  said 
proposed  district,  and  define  the  boundaries  thereof,  which  said 
precincts  may  thereafter  be  changed  by  the  board  of  directors  of 
such  districts,  and  shall  also  appoint  the  judges  of  election  for 
each  such  precinct,  one  of  whom  shall  act  as  clerk  of  election. 
[L.  '05,  p.  249,  §5. 

3445.  Officers— Election— Bond.— Sec.  281.  The  regular  elec- 
tion of  said  district,  for  the  purpose  of  electing  a  board  of 
directors  shall  be  held  on  the  first  Tuesday  after  the  first  Monday 
in  December  of  each  year,  at  which  time  one  director  shall  be 
elected  for  a  term  of  three  years.  Provided,  That  at  the  first  elec- 
tion held  to  choose  the  first  board  of  directors,  after  the  organiza- 
tion of  any  district  shall  have  been  effected,  the  person  having 
the  highest  number  of  votes  shall  continue  in  office  for  the  full 
term  of  three  years;  the  next  highest  two  years;  and  the  next 
highest  one  year.  But  if  two  or  more  persons  have  the  same 
number  of  votes,  then  their  term  shall  be  determined  by  lot, 
under  the  direction  of  the  county  judge  of  the  county  wherein 
the  organization  of  said  district  shall  have  been  effected.  The 
person  receiving  the  highest  number  of  votes  for  any  office  to  be 
filled  at  such  election  is  elected  thereto.  Within  ten  days  after 
receiving  their  certificates  of  election  hereinafter  provided  for 
said  officers  shall  take  and  subscribe  the  official  oath  and  file 


the  same  in  the  office  of  the  county  clerk  wherein  the  organization 
was  effected,  and  on  the  ( first  day  of  January  following,  shall 
assume  the  duties  of  their  respective  offices.  Each  member  of 
the  board  of  directors  shall  execute  an  official  bond  in  the  sum 
of  three  thousand  (3,000)  dollars  which  bond  shall  be  approved 
by  the  county  judge  of  the  county  wherein  such  organization 
was  effected,  and  shall  be  recorded  in  the  office  of  the  county 
clerk  thereof.  All  official  bonds  herein  provided  shall  be  in  form 
prescribed  by  law  for  official  bonds  for  county  officials,  except 
that  the  obligee  named  in  said  bonds  shall  be  to  the  district, 
and  shall  be  filed  with  the  county  clerk  at  the  same  time  as  the 
filing  of  the  oath  herein  provided.  Provided,  further,  That  in  all 
irrigation  districts  heretofore  organized  and  now  exercising  the 
powers  granted  by  law,  the  term  of  office  of  two  of  the  members 
of  their  boards  of  directors  is  hereby  extended  for  a  period  of 
one  and  two  years  respectively,  and  it  shall  be  the  duty  of  said 
board  of  directors  at  their  regular  meeting  held  in  October,  1907, 
to  determine  by  lot,  under  the  direction  of  the  county  iudge  of 
the  county  wherein  such  organization  wras  effected,  which  of  said 
directors  shall  serve  the  additional  one  or  two  years  respectively. 
[L.  '07,  p.  489,  §2;  amending  L.  '05,  p.  250,  §6. 

[See  Chapter  99,  Official  Bonds.     See  also  section  1353.] 

3446.  Same— Election  notice.— Sec.   282.     The  office  of  the 
board  of  directors  shall  be  located  in  the  county  where  the  or- 
ganization was  effected.     Fifteen  days  before  any  election  held 
under  this  act,  subsequent  to  the  organization  of  the  district,  the 
secretary  who  shall  be  appointed  by  the  board  of  directors-  shall 
cause1  notice1  specifying  the  polling  places  of  each  precinct  to  be 
posted  in  three  public  places  in  each  election  precinct,  of  the 
time  and  place  of  holding  the  election,  and  shall  also  post  a 
general  notice  of  the  same  in  the  office  of  said  board,  which 
shall  be  established  and  kept  at  some  fixed  place  to  be  determined 
by  said  board  in  said  county.    Prior  to  the  time  for  posting  the 
notices,  the  board  must  appoint  from  each  precinct,  from  the 
electors  thereof,  three  judges,  one  of  whom  shall  act  as  clerk, 
who  shall  constitute  a  board  of  election  for  such  precinct.     If 
the  board  fails  to  appoint  a  board  of  election,  or  the  members 
appointed  do  not  attend  the  opening  of  polls  on  the  morning  of 
election,  the  electors  of  the  precinct  present  at  that  hour  may 
appoint  the  board,  or  supply  the  place  of  an  absent  member 
thereof.    The  board  of  directors  must,  in  its  order  appointing  the 
board  of  election,  designate  the  hour  and  the  place  in  the  pre- 
cinct where  the  election  must  be  held.     [L.  '05,  p.  251,  §7. 

3447.  Same— Election  officers'  duties. — Sec.  283.     One  of  the 
judges  shall  be  chairman  of  the  election  board  and  may:  First— 
Administer  all  oaths  required  in  the  progress  of  an  election. 


Second — Appoint  judges  and  clerks,  if  during  the  progress  of 
the  election  any  judge  or  clerk  ceases  to  act.  Any  member  of 
the  board  of  election,  or  any  clerk  thereof,  may  administer  and 
certify  oaths  required  to  be  administered  during  the  progress 
of  an  election.  Before  opening  the  polls,  each  member  of  the 
board  must  take  and  subscribe  an  oath  to  faithfully  perform 
_the  duties  imposed  upon  them  by  law.  Any  elector  of  the  pre- 
cinct may  administer  and  certify  such  oath.  The  polls  must  be 
opened  at  eight  o'clock  in  the  morning  of  election  and  be  kept 
open  until  six  o'clock  p.  m.  of  the  same  day.  It  shall  be  the  duty 
of  the  clerk  of  the  board  of  election  to  forthwith  deliver  the  re- 
turns duly  certified  to  the  board  of  directors  of  the  district. 
[L.  '05,  p.  251,  §8. 

3448.  Same— Canvass    of    votes.— Sec.  284.     No   lists,   tally 
paper,   or  certificates  returned   from  any  election  shall  be  set 
aside  or  rejected  for  want  of  form,  if  it  can  be  satisfactorily 
understood.  The  board  of  directors  must  meet  at  its  usual  place 
of  meeting  on  the  first  Monday  after  election  and  canvass  the 
returns.    If  at  the  time  of  meeting  the  returns  from  each  precinct 
in  the  district  in  which  the  polls  were  open  have  been  received, 
the  board  of  directors  must  then  and  there  proceed  to  canvass 
the  returns;  but  if  all  the  returns  have  not  been  received,  the 
canvass  must  be  postponed  from  day  to  day  until  the  returns 
have  been  received,  or  until  six  postponements  have  been  had. 
The  canvass  must  be  made  in  public  and  by  opening  the  returns 
and  counting  the  votes  of  the  district  for  each  person  voted  for, 
and  declaring  the  results    thereof.     The    board    shall    declare 
elected  the  person  receiving  the  highest  number  of  votes  so  re- 
turned for  each  office,  and  also  declare  the  result  of  any  question 
submitted.     [L.  '05,  p.  252,  §9. 

3449.  Same — Records — Vacancy  and  term  of  office. — Sec.  285. 
The  secretary  of  the  board  of  directors  must,  as  soon  as  the 
result  of  any  election  held  under  the  provisions  of  this  act  is 
declared,  enter  in  the  records  of  such  board  and  file  with  the 
county  clerk  of  the  county  in  which  the  office  of  said  district  is 
located,  a  statement  of  such  results,  which  statement  must  show: 
First — A  copy  of  the  publication  notice  of  said  election.     Sec- 
ond— The  names  of  the  judges    of    said  election.     Third — The 
w^hole  number  of  votes  cast  in  the  district  and  in  each  precinct 
of  the  district.     Fourth — The  names  of  the  persons  voted  for. 
Fifth — The  office  to  fill  which  each  person  was  voted  for.   Sixth— 
The  number  of  votes  given  in  each  precinct  for  each  of  such  per- 
sons.    Seventh — The  number  of  votes  given  in  the  district  for 
each  of  such  persons.     Eighth — The   names  of  the  persons  de- 
clared elected,    \inth- — The  result  declared  on  any  question  sub 


mitted  in  accordance  with  the  majority  of  the  votes  cast  for  or 
against  such  question.  The  board  of  directors  must  declare 
elected  the  person  having  the  highest  number  of  votes  given  for 
each  office,  and  also  the  result  of  any  question  submitted.  The 
secretary  must  immediately  make  out  and  deliver  to  such  person 
a  certificate  of  election,  signed  by  him  and  authenticated  with 
the  seal  of  the  board.  In  case  of  a  vacancy  in  the  board  of 
directors,  by  death,  removal,  or  inability  from  any  cause,  to 
properly  discharge  the  duties  as  such  director,  the  vacancy  shall 
be  filled  by  appointment  by  the  remaining  members  of  the  board, 
and  upon  their  failure  or  inability  to  act  within  thirty  days  after 
such  vacancy  occurs,  then  upon  petition  of  five  electors  of  said 
district  the  board  of  county  commissioners  of  the  county  where 
the  office  of  said  board  of  directors  is  situate,  shall  fill  such 
vacancy  or  vacancies.  Any  director  appointed  as  above  provided 
shall  hold  his  office  until  the  next  general  election  of  said  dis- 
trict, and  until  his  successor  is  elected  and  qualified.  [L.  '05,  p. 
252,  §10. 

3450.  Board  of  directors — Officers — General  duties — Ratio  of 
water  distribution. — Sec.  286.  The  directors,  having  duly  quali- 
fied, shall  organize  as  a  board,  elect  a  president  from  their  num- 
ber, and  appoint  a  secretary.  The  board  shall  have  power,  and 
it  shall  be  their  duty,  to  adopt  a  seal,  manage  and  conduct  the  af- 
fairs and  business  of  the  district,  make  and  execute  all  necessary 
contracts,  employ  such  agents,  attorneys,  officers  and  employes 
as  may  be  required,  and  prescribe  their  duties,  establish  equita- 
ble rules  and  regulations  for  the  distribution  and  use  of  water 
among  the  owners  of  said  land,  and  generally  to  perform  all 
such  acts  as  shall  be  necessary  to  fully  carry  out  the  purposes  of 
this  iact.  Said  board  shall  have  the  power  in  addition  to  the 
means  to  supply  water  to  said  district  proposed  by  the  petition 
submitted  for  the  formation  of  said  district,  to  construct,  acquire 
or  purchase  any  and  all  canals,  ditches,  reservoirs,  reservoir 
sites,  water,  water  rights,  rights  of  way  or  other  property  neces- 
sary for  the  use  of  the  district.  In  case  of  the  purchase  of  any 
property  by  such  district  the  bonds  of  the  district  hereinafter 
provided  for  may  be  used  at  their  par  value  in  payment  without 
previous  offer  of  such  bonds  for  sale.  But  no  contract  involving 
a  consideration  exceeding  ten  thousand  (10,000)  dollars,  and  not 
exceeding  twenty-five  thousand  (25,000)  dollars  shall  be  binding, 
unless  such  contract  shall  be  authorized  and  ratified  in  writing 
by  not  less  than  one-third  of  the  legal  electors  of  said  district 
according  to  the  number  of  votes  cast  at  the  last  district  elec- 
tion; nor  shall  any  contract  in  excess  of  twenty-five  thousand 
(25,000)  dollars  be  binding  until  such  contract  shall  have  been 


08 

authorized  and  ratified  at  an  election,  in  manner  as  is  provided 
for  the  issue  of  bonds. 

The  said  rules  and  regulations  shall  be  printed  in  convenient 
form-  as  soon  as  the  same  are  adopted,  for  distribution  in  the 
district.  All  waters  distributed  shall  be  apportioned  to  each  land 
owner  pro  rata  to  the  lands  assessed  under  this  act  within  such 
district.  The  board  of  directors  shall  have  power  to  lease  or 
rent  the  use  of  water  or  contract  for  the  delivery  thereof  to 
occupants  of  other  land  within  or  without  the  said  district  at 
such  prices  and  on  such  terms  as  they  deem  best,  provided  the 
rental  shall  not  be  less  than  one  and  one-half  times  the  amount 
of  the  district  tax  for  which  said  land  would  be  liable  if  held  as 
a  freehold;  And  provided,  further,  Xo  vested  or  prescriptive  right 
to  the  use  of  such  water  shall  attach  to  said  land  by  virtue  of 
such  lease  or  such  rental,  provided  that  any  land  owner  in  said 
district  may  with  the  consent  of  the  board  of  directors  assign 
the  right  to  the  whole  or  any  portion  of  the  water  so  apportioned 
to  him  for  any  one  year  where  practicable  to  any  other  bona  fide 
land  owner,  to  be  used  in  said  district  for  use  on  his  land  for 
said  year,  provided  such  owners  shall  have  paid  all  amounts  due 
on  assessments  upon  all  such  lands.  [L.  '05,  p.  253,  §11. 

3451.  Directors — Meetings — Duties  —  Domain  —  Public   use. — 
Sec.  287.    The  board  of  directors  shall  hold  a  regular  quarterly 
meeting  in  their  office  on  the  first  Tuesday  in  January,  April, 
July  and  October,  and  such  special  meetings  as  may  be  required 
for  the  proper  transaction  of  business.     All  special  meetings 
shall  be  called  by  the  president  of  the  board,  or  any  two  direct- 
ors.   All  meetings  of  the  board  must  be  public,  and  two  members 
shall  constitute  a  quorum  for  the  transaction  of  business;  and 
on  all  questions  requiring  a  vote  there  shall  be  a  concurrence  of 
at  least  two  members  of  said  board.     All  records  of  the  board 
must  be  open  to  the  inspection  of  any  elector  during  business i 
hours.    The  board,  its  agents,  and  employes,  shall  have  the  right 
to  enter  upon  any  land  in  the  district,  to  make  surveys  and  to 
locate  and   construct  any  canal   or  canals,  and  the  necessary 
laterals.     Said  board  shall  also  have  the  right  to  acquire  all 
lands,  water  rights,  franchises  and  other  property  necessary  for 
the  construction,  use,  maintenance,  repair,  and  improvement  of 
its  canals,  ditches,  reservoirs  and  water  works;  and  shall  also 
have  the  right,  by  purchase  or  condemnation  to  acquire  rights 
of  way  for  the  construction  or  enlargement  of  any  of  its  ditches, 
canals  or  reservoirs,  also  lands  for  reservoir  sites.     [L.  '05,  p. 
254,  §12. 

3452.  Property— Title.— Sec.  288.     The  title  to  all  property 
acquired  under  the  provisions  of  this  act  shall  immediately  and 


99 

by  operation  of  law  vest  in  such  irrigation  district,  in  its  cor- 
porate name,  and' shall  be  held  by  such  district  in  trust  for,  and 
is  hereby  dedicated  and  set  apart  for  the  uses  and  purposes  set 
forth  in  this  act,  and  shall  be  exempt  from  all  taxation,  and. said 
board  is  hereby  authorized  and  empowered  to  hold,  use  and  ac- 
quire, manage,  occupy  and  possess  said  property  as  herein  pro- 
vided; Provided,  That  when  any  district  contemplated  in  this 
act  shall  find  it  necessary  to  procure  and  acquire  a  supply  of 
water  from  outside  the  boundaries  of  this  state,  then  and  in 
such  event  it  shall  be  lawful  for  said  district  to  contract  and  pay 
for  the  same  in  the  same  manner  as  other  property  acquired  by 
the  district  is  purchased  and  paid  for.  [L.  '05,  p.  255,  §13. 

3453.  Conveyances — Suits. — Sec.  289.  The  said  board  is 
hereby  authorized  and  empowered  to  take  conveyances  or  assur- 
ances for  all  property  acquired  by  it  under  the  provisions  of  this 
act  in  the  name  of  such  irrigation  district  to  and  for  the  purposes 
herein  expressed  and  to  institute  and  maintain  any  and  all  ac- 
tions and  proceedings,  suits  at  law  or  in  equity,  necessary  or 
proper  in  order  to  fully  carry  out  the  provisions  of  this  act  or  to 
enforce,  maintain,  protect,  or  preserve  any  or  all  rights,  privi- 
leges and  immunities  created  by  this  act  or  acquired  in  pursu- 
ance thereof.  And  in  all  courts,  actions,  suits,  or  proceedings 
the  said  board  may  sue.  appear  and  defend  in  person  or  by  attor- 
neys and  in  the  name  of  such  irrigation  district.  Judicial  notice 
shall  be  taken  in  all  actions,  suits  and  judicial  proceedings  in 
any  court  of  this  state  of  the  organization  and  existence  of  any 
irrigation  district  of  this  state,  now  or  hereafter  organized,  from 
and  after  the  filing  for  record  in  the  office  of  the  county  clerk 
of  the  certified  copy  of  the  order  of  the  board  of  county  com- 
missioners mentioned  in  section  3  of  this  act;  and  a  certified 
copy  of  said  order  shall  be  prima  facie  evidence  in  all  actions, 
suits  and  proceedings  in  any  court  of  this  state  of  the  regularity 
and  legal  sufficiency  of  all  acts,  matters  and  proceedings  therein 
recited  and  set  forth;  and  any  such  irrigation  district,  in  regard 
to  which  any  such  order  has  been  heretofore  or  may  hereafter 
be  entered,  and  such  certified  copy  thereof,  so  filed  for  record, 
and  which  has  exercised  or  shall  exercise  the  rights  and  powers 
of  such  a  district,  and  shall  have  had  or  shall  have  in  office  a 
board  of  directors  exercising  the  duties  of  their  office  and  the 
legality  or  regularity  of  the  formation  or  organization  whereof 
shall  not  have  been  questioned  by  proceedings  in  quo  warranto 
instituted  in  the  district  court  of  the  county  in  which  such  dis- 
trict or  the  greater  portion  thereof  is  situated  within  one  year 
from  the  date  of  such  filing,  shall  be  conclusively  deemed  to  be 
a  legally  and  regularly  organized,  established  and  existing  irri- 


100 

>u  district  within  the  meaning  of  tl 
lawful  formation  and  organization  shall  n<> 
tioned  in  any  action,  suit  or  proceeding  wh"th 
the  provisions  of  this  act  or  otherwise.     [L.  4. 

[Section  3  above  referred  to  is  section  2442.] 

3454.     Bonds— Elections. — Sec.  290.     For  the  purpose 
structing  or  purchasing  or  acquiring  necessary  reserv 
reservoirs,  water  rights,  canals,  ditches  and  works,  and  acquiring 
the  necessary  property  and  rights  therefor,  for  the  purpose  of 
paying  the  first  year's  interest  upon  the  bonds  herein  authorized, 
and  otherwise  carrying  out  the  provisions  of  this  fc  board 

of  directors  of  any  such  district  shall,  as  soon  after  such  d . 
has  been  organized  as  may  be  practicable,  estimate  and 
mine  the  amount  of  money  necessary  to  be  raised  for  such  pur- 
poses, and  shall  forthwith  call  a  special  election,  at  which 
tion  shall  be  submitted  to  the  electors  of  such  district  possess- 
ing the  qualifications  prescribed  by  this  act  the  quest! 
whether  or  not  the  bonds  of  said  district  shall  be  issued  in  the 
amount  so  determined.    A  notice  of  snch  election  mnst  be  . 
by  posting  notices  in  three  public  places  in  each  ejection  pr 
in  said  district  for  at  least  twenty  days,  and  also  by  publication 
of  snch  notice  in  some  newspaper  published  in  the  county  where 
the  office  of  the  board  of  directors  of  such  district  is  required 
to  be  kept,  once  a  week  for  at  least  three  Mcccam 
Snch  notice  shall  specify  the  time  of  holding  the  election,  the 
amount  of  bonds  proposed  to  be  issued,  and  said  election  must 
be  held  and  the  result  thereof  determined  and  declared  in  all 
respects  as  nearly  as  possible  in  conformity  wit*  the  prov 
of  this  act  governing  the  election  of  officers:  /Yorirfrrf.  That  no 
informalities  in  conducting  such  election  shaH  invalidate  the 
same  if  the  election  shall  hare  been  otherwise  fairly  cond 

ich  election  the  ballots  shall  contain  the  words  -Bonds— 
«>r  "Bonds — Xo~  or  words  equivalent  thereto.  If  a  majority 
of  the  legal  electors  who  are  freeholders  and  taxpayers  v 
said  district  have  voted  ~Bonds— Yes~  the  board  of  dir^ 
shall  immediately  cause  bonds  in  snch  amount  to  be  issued  and 
able  in  series  as  follows,  to  w 

At  the  expiration  of  eleven  years,  not  less  than  five  :  • 
of  the  whole  amount  and  number  of  said  bonds;  at  the  expiration 
of  twelve  years,  not  less  than  six  per  cent,  of  the  whole  amount 
and  number  of  said  bonds:  at  the  expirati< 
not  less  than  seven  per  cent,  of  the  whole  amount  and  number 
of  said  bonds:  at  the  expiration  of  fourteen          -  — 

eight  per  cent,  of  the  whole  amount  and  number  of  said  bonds; 
at  the  expiration  of  fifteen  years,  not  less  than  n: 


101 

of  the  \vhoh-  ;iiii<MiuT  ;iud  nunil>er  of  said  bonds;  at  the  expiration 

u  Mi  per  •  ent.  of  the  whole  amount 
xpi  ration  of  seventeen  years, 

than  el  f  the  whole  amount  and  number 

•id  bonds:  at  the  expiration  of  eighteen  years,  not  less  than 
thir*-  lit.   of   the   whole  amount  and   number  of  said 

t  thp  expiration  of  nineteen  years,  not  less  than  fifteen 
•.vhole  amount  and  number  of  said  bonds;  at  the 
itage  sufficient  to  pay  off  the 
id  bonds:  that  the  several  enumerated  percent- 
ntire  amount  of  the  bond  issue;  that  each  bond 
payable  at  the  given  time  for  its  entire  amount,  and  not 
-.tid  bonds  shall  bear  interest  at  the  rate 
per  cent,  per  annum  payable  semi-annually 
lay  of  June  and  December  of  each  year.    The  princi- 
<nd  interest  shall  be  payable  at  the  office  of  the  county  treas- 
-ounty  in  which  the  organization  of  the  district  was 
}.  and  at  such  other  place  as  the  board  of 
-  may  designate  in  such  bond.    Said  bonds  shall  be  each 
of  the  denomination  of  one  hundred  dollars,  nor  more  than  five 
hundred  dollars,  shall  be  negotiable  in  form,  executed  in  the 
name  of  the  district  and  signed  by  the  president  and  secretary, 
and  the  seal  of  the  district  shall  be  affixed  thereto.    Said  bonds 
shall  be  numbered  consecutively  as  issued,  and  bear  date  at  the 
time  of  their  issue.    Coupons  for  the  interest  shall  be  attached 
1  bearing  the  lithographed  signatures  of  the  presi- 
dent and  secretary.    Said  bonds  shall  express  on  their  face  that 
>y  the  authority  of  this  act.  stating  its  title  and 
date  of  approval.    The  secretary  shall  keep  a  record  of  the  bonds 
their  number,  date  of  sale,  the  price  received,  and  the  name 
of  the  purchaser.     Provided.  Any  such  district  may,  by  a  ma- 
f  the  legal  electors  of  said  district,  provide  for  the 
of  bonds  that  will  mature  in  any  number  of  years  less 
than  twenty,  and  arrange  for  the  payment  thereof,  in  seri» 

e  provided:  Provided,  further.  That  when  the  money  pro- 
vided by  any  previous  issue  of  bonds  has  become  exhausted  by 
expenditures  herein  authorized  therefor,  and  it  becomes  n 

ise  additional  money  for  such  purposes,  additional 
is  may  be  issued  submitting  the  question  at  special  election 
to  the  qualified  voters  of  said  district,  otherwise  complying  with 
the  provisions  of  this  section  in  respect  to  an  original  issue  of 
such  bonds:  Provided,  also.  The  lien  for  taxes,  for  the  payment 
of  the  interest  and  principal  of  any  bond  issue,  shall  be  a  prior 
lien  to  that  of  any  subsequent  bond  issue.  [L.  "05.  p.  -5*5.  $15. 


102 

3455.  Bonds— Sale— Proceeds.— Sec.    291.      The    board    may 
sell  bonds  from  time  to  time  in  such  quantities  as  may  be  neces- 
sary and  most  advantageous  to  raise  the  money  for  the  construc- 
tion or  purchase  of  canals,  reservoir  sites,  reservoirs,  water  rights 
and  works,  and  otherwise  to  fully  carry  out  the  object  and  pur- 
poses of  this  act.     Before  making  any  sale  the  board  shall,  at  a 
meeting,  by  resolution  declare  its  intention  to  sell  a  specified 
amount  of  the  bonds  and  the  day  and  hour  and  place  of  such 
sale,  and  shall  cause  such  resolution  to  be  entered  in  the  minutes, 
and  notice  of  the  sale  to  be  given  by  publication  thereof  at  least 
twenty  days  in  a  daily  newspaper  published  in  the  city  of  Denver, 
and  in  any  other  newspaper,  at  their  discretion.    The  notice  shall 
state  that  sealed  proposals  will  be  received  by  the  board  at  their 
office,  for  the  purchase  of  the  bonds,  till  the  day  and  hour  named 
in  the  resolution.     At  the  time  appointed  the  board  shall  open 
the  proposals  and  award  the  purchase  of  the  bonds  to  the  highest 
responsible  bidder  and  may  reject  all  bids;  but  said  board  shall, 
in  no  event,  sell  any  of  said  bonds  for  less  than  ninety-five  per- 
cent, of  the  face  value  thereof.     In  case  no  bid  is  made  and  ac- 
cepted as  above  provided  the  board  of  directors  is  hereby  author- 
ized to  use  said  bonds    for    the    purchase    of    canals,    reservoir 
sites,  reservoirs,  water  rights  and  works,  or  for  the  construction 
of  any  canal,  reservoir  and  works;  Provided,  Such  bonds  shall 
not  be  so  disposed  of  at  less  than  ninety-five  per  cent,  of  the  face 
value  thereof.    [L.  '05,  p.  258,  §16. 

[State  may  purchase  ten  per  cent,  of  the  bomd  issue.     Section  5198.] 

3456.  Bonds— Payment— Lien.— Sec.   292.     Said   bonds,   and 
the  interest  thereon,  shall  be  paid  by  revenue  derived  from  an 
annual  assessment  upon  the  real  property  of  the  district,  and  the 
real  property  of  the  district  shall  be  and  remain  liable  te  be 
assessed  for  such  pavments  as  herein  provided.     [L.  -05,  p.  259, 
§17. 

3457.  Board  of  directors— Levy.— Sec:  293.     It  shall  be  the 
duty  of  the  board  of  directors,  on  or  before  September  first  of 
each  year,  to  determine  the  amount  of  money  required  to  meet 
the  maintenance,  operating  and  current  expenses  for  the  ensuing 
year,  and  to  certify  to  the  county  commissioners  of  the  county  in 
which  the  office  of  said  district  is  located,  said  amount,  together 
with  such  additional  amount  as  may  be  necessary  to  meet  any 
deficiency  in  the  payment  of  said  expenses  theretofore  incurred. 
[L.  '05,  p.  259,  §18. 

3458.  Assessor — Assessment. — Sec.  294.     It  shall  be  the  duty 
of  the  county  assessor  of  any  county  embracing  the  whole  or  a 
part  of  any  irrigation  district,  to  assess  and  enter  upon  his  rec- 
ords as  assessor  in  its  appropriate  column,  the  assessment  of  all 


103 

real  estate,  exclusive  of  improvements,  situate,  lying  and  being 
within  any  irrigation  district  in  whole  or  in  part  of  such  county. 
Immediately  after  said  assessment  shall  have  been  extended  as 
provided  by  law,  the  assessor  shall  make  returns  of  the  total 
amount  of  such  assessment  to  the  county  commissioners  of  the 
county  in  which  the  office  of  said  district  is  located.  All  lands 
wTithin  the  district  for  the  purposes  of  taxation  under  this  act 
shall  be  valued  by  the  assessor  at  the  same  rate  per  acre;  Pro- 
vided, That  in  no  case  shall  any  land  be  taxed  for  irrigation  pur- 
poses under  this  act,  w^hich  from  any  natural  cause  cannot  be 
irrigated,  or  is  incapable  of  cultivation.  [L.  '05,  p.  259,  §19. 

3459.  County  commissioners. — Sec.  295     It  shall  be  the  duty 
of  the  county  commissioners  of 'the  county  in  which  is  located 
the  office  of  any  irrigation  district,  immediately  upon  receipt  of 
the  returns  of  the  total  assessment  of  said  district,  and  upon  the 
receipt  of  the  certificate  of  the  board  of  directors  certifying  the 
total  amount  of  money  required  to  be  raised  as  herein  provided,  to 
fix  the  rate  of  levy  necessary  to  provide  said  amount  of  money,  and 
to  fix  the  rate  necessary  to  provide  the  amount  of  money  required 
to  pay  the  interest  and  principal  of  the  bonds  of  said  district  as 
the  same  shall  become  due;  also,  to  fix  the  rate  necessary  to 
provide  the  amount  of  money  required  for  any  other  purposes  as 
in  this  act  provided,  and  which  are  to  be  raised  by  the  levy  of 
assessments  upon  the  real  property  of  said  district;  and  to  cer- 
tify said  respective  rates  to  the  county  commissioners  of  each 
county  embracing  any  portion  of  said  district.    The  rate  of  levy 
necessary  to  raise  the  required  amount  of  money  on  the  assessed 
valuation  of  the  property  of  said  district  shall  be  increased  fifteen 
per  cent,  to  cover  delinquencies.    For  the  purposes  of  said  district 
it  shall  be  the  duty  of  the  county  commissioners  of  each  county 
in  which  any  irrigation  district  is  located  in  whole  or  in  part, 
at  the  time  of  making  levy  for  county  purposes,  to  make  a  levy, 
at  the  rates  above  specified,  upon  all  real  estate  in  said  district 
within  their  respective  counties.    All  taxes  levied  under  this  act 
are  special  taxes.     [L.  '05,  p.  260,  §20. 

3460.  District  treasurer. — Sec.    296.     The  Bounty    treasure!1 
of  the  county  in  which  is  located  the  office  of  any  irrigation  dis- 
trict, shall  be  and  is  hereby  constituted  ex-officio  district  treasurer 
of  said  district,  and  said  county  treasurer  shall  be  liable  upon 
his  official  bond  and  to  indictment  and  criminal  prosecution  for 
malfeasance,  misfeasance  or  failure  to  perform  any  duty  herein 
prescribed  as  county  treasurer  or  district  treasurer,  as  is  provided 
by  law  in  other  cases  as  county  treasurer.     Said  treasurer  shall 
collect,  receive  and  receipt  for  all  moneys  belonging  to  said  dis- 
trict.   It  shall  be  the  duty  of  the  county  treasurer  of  each  county 


104 

in  which  any  irrigation  district  is  located  in  whole  or  in  part,  to 
collect  and  receipt  for  all  taxes  levied  as  herein  provided  in  the 
same  manner  and  at  the  same  time,  and  on  the  same  receipt  as 
is  required  in  the  collection  of  taxes  upon  real  estate  for  county 
purposes;  Provided,  however,  That  such  county  treasurer  shall 
receive  in  payment  of  the  general  fund  tax  above  mentioned  for 
the  year  in  \vhich  said  taxes  were  levied,  warrants  drawn  against 
said  general  fund  the  same  as  so  much  lawful  money  of  the  United 
States,  if  such  warrant  does  not  exceed  the  amount  of  the  general 
fund  tax  which  the  person  tendering  the  same  owns;  Provided, 
•further.,  That  such  county  treasurer  shall  receive  in  payment  of 
the  district  bond  fund  taxes  above  mentioned  for  the  year 
in  which  said  taxes  were  levied,  interest  coupons  or  bonds  of 
said  irrigation  district  maturing  within  the  year  the  same  as 
so  much  lawful  money  of  the  United  States,  if  such  interest 
coupons  or  bonds  do  not  exceed  the  amount  of  district  bonds 
funds  tax  which  the  person  tendering  the  same  owns.  The 
county  treasurer  of  each  county  comprising  a  portion  only 
of  the  irrigation  district,  excepting  the  county  treasurer  of  the 
county  in  which  the  office  of  said  district  is  located,  shall  on  the 
first  Mondays  of  every  month  remit  to  the  district  treasurer  afore- 
said all  moneys,  warrants,  coupons,  or,  bonds  theretofore  collected 
or  received  by  him  on  account  of  said  district.  Every  county 
treasurer  shall  keep  a  bond  fund  account  and  a  general  fund  ac- 
count. The  bond  fund  account  shall  consist  of  all  moneys  received 
on  account  of  interest  and  principal  of  bonds  issued  by  said  dis- 
trict, said  accounts  for  interest  and  principal  shall  be  kept  sep- 
arate. The  general  fund  shall  consist  of  all  other  moneys  or  general 
fund  warrants  received  by  the  collection  of  taxes  or  otherwise.  The 
district  treasurer  aforesaid  shall  pay  out  of  said  bond  fund,  when 
due,  the  interest  and  principal  of  the  bonds  of  said  district,  at 
the  time  and  place  specified  in  said  bonds,  and  shall  pay  out  of 
said  general  fund  only  upon  the  order  of  the  district,  signed  by 
the  president  and  countersigned  by  the  secretary  of  said  district 
as  herein  provided.  The  district  treasurer,  on  the  fifteenth  day 
of  each  month,  shall  report  to  the  secretary  of  the  district  the 
amount  of  money  in  his  hands  to  the  credit  of  the  respective  funds 
above  provided ;  the  amount  of  warrants  paid  during  the  previous 
month,  and  the  amount  of  registered  warrants  if  there  be  any. 
All  such  district  taxes  collected  and  paid  to  the  county  treasurers 
as  aforesaid,  shall  be  received  by  said  treasurers  in  their  official 
capacity,  and  they  shall  be  responsible  for  the  safe-keeping,  dis- 
bursement and  payment  thereof  the  same  as  for  other  moneys 
collected  by  them  as  such  treasurers ;  Provided,  Said  county  treas- 
urer shall  receive  as  his  sole  compensation  for  the  collection  of 
such  taxes,  such  amount  as  the  board  of  directors  may  allow,  to 


105 

be  not  less  than  twenty-five  (25)  dollars,  nor  more  than  one  hun- 
dred (100)  dollars,  which  compensation  shall  be  considered  as 
a  part  of  the  regular  salary  of  such  county  treasurer  as  provided 
by  law.  [L.  '07,  p.  490,  §3;  amending  L.  '05,  p.  260,  §21. 

[For  treasurer  using   public    money   or   dealing   in   warrants   see   sections 
1820-1826.] 

3461.  Assessment — Collection. — Sec  297.     The  revenue  laws 
of  this  state  for  the  assessment,  levying  and  collection  of  taxes 
on  real  estate  for  county  purposes,  except  as  herein  modified, 
shall  be  applicable  for  the  purposes  of  this  act,  including  the 
enforcement  of  penalties  and  forfeiture    for    delinquent    taxes. 
[L.  '05,  p.  262,  §22. 

3462.  Construction — Contract. — Sec.  298.     After  adopting  a 
plan  for  the  construction  of  canals,  reservoirs,  and  works,  the 
board  of  directors  shall  give  notice,  by  publication  thereof,  not 
less  than  twenty  days  in  a  newspaper  published  in  each  of  the 
counties  into  which  any  such  irrigation  extends,  provided  a  news- 
paper is  published  therein,  and  in  such  other  newspapers  as  they 
may  deem  advisable,  calling  for  bids  for  the  construction  of  said 
work  or  any  portion  thereof ;  if  less  than  the  whole  work  is  adver- 
tised, then  the  portion  so  advertised  must  be  particularly  de- 
scribed in  such  notice ;  said  notice  shall  set  forth  that  plans  and 
specifications  can  be  seen  at  the  office  of  the  board,  and  that  the 
board  will  receive  sealed  proposals  therefor,  and  that  the  contract 
will  be  let  to  the  lowest  responsible  bidder,  stating  the  time  and 
place  for  opening  the  proposals,  which  at  said  time  and  place  shall 
be  opened  in  public,  and  as  soon  as  convenient  thereafter  the 
board  shall  let  said  work,  either  in  portions,  or  as  a  whole,  to 
the  lowest  responsible  bidder,  or  they  may  reject  any  or  all  bids 
and  readvertise  for  proposals,  or  may  proceed  to  construct  the 
work  under  their  own  superintendence.     Contracts  for  the  pur- 
chase of  material  shall  be  awarded  to  the  lowest  responsible  bid- 
der.   The  person  or  persons  to  whom  a  contract  may  be  awarded 
shall  enter  into  a  bond,  with  good  and  sufficient  sureties,  to  be 
approved  by  the  board,  payable  to  said  district  for  its  use,  for 
not  less  than  ten  per  cent,  of  the  amount  of  the  contract  price, 
conditioned  for  the  faithful  performance  of  said  contract.     The 
work  shall  be  done  under  the  direction  and  to  the  satisfaction  of 
the  engineer  in  charge,  and  be  approved  by  the  board.     [L.  '05, 
p.  262,  §23. 

3463.  Claim — Audit — Payment — Financial  report. — Sec.   299. 
No  claims  shall  be  paid  by  the  district  treasurer  until  the  same 
shall  have  been  allowed  by  the  board,  and  only  upon  warrants 
signed  by  the  president,  and  countersigned  by  the  secretary,  which 
warrants  shall  state  the  date  authorized  by  the  board  and  for 
what  purposes;  and  if  the  district  treasurer  has  not  sufficient 


106 

money  on  hand  to  pay  such  warrant  when  it  is  presented  for  pay- 
ment, he  shall  endorse  thereon  "Not  paid  for  want  of  funds,  this 
warrant  draws  interest  from  date  at  six  per  cent,  per  annum," 
and  endorse  thereon  the  date  when  so  presented,  over  his  signa- 
ture, and  from  the  time  of  such  presentation  until  paid  such 
warrant  shall  draw  interest  at  the  rate  of  six  per  cent,  per  annum ; 
Provided,  When  there  is  more  than  the  sum  of  one  hundred 
dollars  or  more  in  the  hands  of  the  treasurer  it  shall  be  applied 
upon  said  warrant.  All  claims  against  the  district  shall  be  veri- 
fied the  same  as  required  in  the  case  of  claims  filed  against 
counties  in  this  state,  and  the  secretary  of  the  district  is  hereby 
authorized  and  empowered  to  administer  oaths  to  the  parties 
verifying  said  claims,  the  same  as  the  county  clerk  or  notary 
public  might  do.  The  district  treasurer  shall  keep  a  register  in 
which  he  shall  enter  each  warrant  presented  for  payment,  show- 
ing the  date  and  amount  of  such  warrant,  to  whom  payable,  the 
date  of  the  presentation  for  payment,'  the  date  of  payment,  and 
the  amount  paid  in  redemption  thereof,  and  all  warrants  shall 
be  paid  in  the  order  of  their  presentation  for  payment  to  the 
district  treasurer.  All  warrants  shall  be  drawn  payable  to  the 
claimant  or  bearer,  the  same  as  county  warrants.  [L.  '05.  p. 
262,  §24. 

3464.  Expense  of  organization,  how  defrayed. — Sec.  300.  For 
the  purpose  of  defraying  the  expenses  of  the  organization  of  the 
district,  and  the  care,  operation,   management,  repair  and  im- 
provement of  all  canals,  ditches,  reservoirs  and  works,  including 
salaries  of  officers  and  employes,  the  board  may  either  fix  rates 
of  tolls  and  charges  and  collect  the  same  of  all  persons  using  said 
canal  and  water  for  irrigation,  or  other  purposes,  and  in  addition 
thereto  may  provide,  in  whole  or  in  part,  for  the  payment  of  such 
expenditures  by  levy  of  assessments  therefor,  as  heretofore  pro- 
vided, or  by  both  tolls  and  assessment;  Provided,  That  in  case 
the  money  raised  by  the  sale  of  bonds  issued  be  insufficient,  and 
in  case  bonds  be  unavailable  for  the  completion  of  the  plans  of 
works  adopted,  it  shall  be  the  duty  of  the  board  of  directors  to 
provide  for  the  completion  of  said  plans  by  levy  of  an  assessment 
therefor  in  the  same  manner  in  which  levy  of  assessments  is  made 
for  the  other  purposes  provided  for  in  this  act.    [L.  ?05,  p.  263,  §25. 

3465.  Crossing  streams,  highways,  railroads,  state  lands,  etc.— 
Sec.  301.     The  board  of  directors  shall  have  the  power  to  con- 
struct the  said  works  across  any  stream  of  water,  water  course, 
street,  avenue,  highway,  railway,  canal,   ditch,   or  flume  which 
the  route  of  said  canal  or  canals  may  intersect  or  cross;  and  if 
such  railroad  company  and  said  board,  or  the  owners  and  con- 
trollers of  said  property,  thing  or  franchise  so  to  be  crossed,  can 


107 

uo.t  agree  upon  the  amount  to  be  paid  therefor,  or  the  points  or 
the  manner  of  said  crossings,  the  same  shall  be  ascertained  and 
determined  in  all  respects  as  is  provided  in  respect  to  the  taking 
of  land  for  public  uses.  The  right  of  way  is  hereby  given,  dedi- 
cated, and  set  apart,  to  locate,  construct  and  maintain  said  works 
or  reservoirs,  over,  through,  or  upon  any  of  the  lands  which  are 
now,  or  may  be  the  property  of  the  state.  [L.  '05,  p.  264,  §26. 

3466.  Officers'     salaries — Not     interested     in  contracts. — Sec. 
302.    The  board  of  directors  shall  each  receive  at  the  rate  of  two 
and  one-half  dollars  per  day  while  attending  meetings,  and  their 
actual  and  necessary'  expenses  while  engaged  in  official  business. 
The  salary  of  the  secretary  shall  not  exceed  eight  hundred  dollars 
per  annum.    No  director  or  any  officer  named  in  this  act  shall, 
in  any  manner,  be  interested,  directly  or  indirectly,  in  any  con- 
tract awarded  or  to  be  awarded  by  the  board,  or  in  the  profits  to 
be  derived  therefrom;  nor  shall  receive  any  bonds,  gratuity,  or 
bribe,  and  for  any  violation  of  this  provision,  such  officer  shall 
be  deemed  guilty  of  a  felony,  and  such  conviction  shall  work  a 
forfeiture  of  his  office,  and  he  shall  be  punished  by  a  fine  not  ex- 
ceeding five  hundred  dollars,  or  by  imprisonment  in  the  peniten- 
tiary not  exceeding  five  years  nor  less- than  one  year.     [L.  '05,  p. 
264,  §28. 

3467.  Limit  of  indebtedness.— Sec.    303.     The    board    of    di- 
rectors, or  other  officers  of  the  district,  shall  have  no  power  to 
incur  any  debt  or  liability,  either  by  issuing  bonds  or  otherwise, 
in  excess  of  the  express  provisions  of  this  act,  and  any  debt  or 
liability  incurred  in  excess  of  such  express  provisions  shall  be 
and  remain  absolutely  void.     [L.  '05,  p.  264,  §28. 

3468.  Insufficient  supply — Distribution. — Sec.    304.      In    case 
the  volume  of  water  in  any  canal,  reservoir  or  other  works  in  any 
district  shall  not  be  sufficient  to  supply  the  continual  wants  of 
the  entire  district  and  susceptible  of  irrigation  therefrom,  then 
it  shall  be  the  duty  of  the  board  of  directors  to  distribute  all 
available  water  upon  certain  or  alternate  days  to  different  locali- 
ties, as  they  may  in  their  judgment  think  best  for  the  interests  of 
all  parties  concerned.     [L.  '05,  p.  264,  §29. 

3469.  Compensation  for  property  taken. — Sec.  305.     Nothing 
herein  contained  shall  be  deemed  to  authorize  any  person  or  per- 
sons, to  divert  the  waters  of  any  river,  creek,  stream,  canal,  or. 
reservoir  to  the  detriment  of  any  person  or  persons  having  a  prior 
right  to  the  waters  of  such  river,  creek,  stream,  canal,  or  reser- 
voirs, unless  previous  compensation   be  ascertained    and    paid 
therefor,  under  the  laws  of  this  state  authorizing  the  taking  of 
private  property  for  public  use.     [L.  '05,  p.  265,  §30. 


108 

3470.  Boundaries— Change  of— Effect.— Sec.  306.    The  bound- 
aries of  any  irrigation  district  now  or  hereafter  organized  under 
the  provisions  of  this  act,  may  be  changed  in  the  manner  herein 
prescribed;  but  such  change  of  the  boundaries  of  the  district 
shall  not  impair  or  affect  its  organization,  or  its  rights  in  or  to 
property,  or  any  of  its  rights  or  privileges  of  whatsoever  kind  or 
nature,  nor  shall  it  affect,  impair,  or  discharge  any  contract,  obli- 
gation, lien,  or  charge  for,  or  upon  w^hich  it  was  or  might  become 
liable  or  chargeable  had  such  change  of  its  boundaries  not  been 
made.     [L.  '05,  p.  265,  §31. 

3471.  Contiguous  territory — Annexation — Petition. — Sec.  307. 
The  holder  or  holders  of  title,  or  evidence  of  title,  representing  a 
majority  of  the  acreage  of  any  body  of  land  adjacent  to  or  situate 
within  the  boundaries  of  any  irrigation  district,  may  file  with 
the  board  of  directors  of  said  district  a  petition  in  writing,  pray 
ing  that  such  lands  be  included  in  such  district.     The  petition 
shall  describe  the  tracts,  or  body  of  land  owned  by  the  petitioners, 
but  such  description  need  not  be  more  particular  than  is  required 
when  such  lands  are  entered  by  the  county  assessor  in  the  assess- 
ment book.     Such  petition  shall  be  deemed  to  give  the  assent  of 
the  petitioners  to  the  inclusion  in  said  district  of  the  lands  de- 
scribed in  the  petition,  and  such  petition  must  be  acknowledged 
in  the  same  manner  that  conveyances  of  land  are  required  to  be 
acknowledged.     [L.  '05,  p.  265,  §32. 

3472.  Contiguous  territory— Notice— Sec.  308.    The  secretary 
of  the  board  of  directors  shall  cause  notice  of  the  filing  of  such 
petition  to  be  given  and  published  once  each  week  for  three  suc- 
cessive weeks,  in  a  newspaper  published  in  the  county  where  the 
office  of  said  board  is  situate,  which  notice  shall  state  the  filing 
of  such  petition  and  the  names  of  the  petitioners,  a  description 
of  the  lands  mentioned  in  said  petition,  and  the  prayer  of  said 
petitioners;  giving  notice  to  all  persons  interested,  to  appear  at 
the  office  of  said  board  at  a  time  named  in  said  notice,  and  show 
cause,  in  waiting,  if  any  they  have,  why  the  petition  should  not 
be  granted.     The  time  specified  in  the  notice  at  which  it  shall 
be  required  to  show  cause  shall  be  the  regular  meeting  of  the 
board  next  after  the  expiration  of  the  time  for  the  publication 
of  the  notice.     The  petitioner,  or  petitioners,  shall  advance  to 
the  secretary  sufficient  money  to  pay  the  estimated  cost  of  all 
proceedings  under  such   petition  before  the   secretary   shall   be 
required  to  give  such  notice.     [L.  '05,  p.  266,  §33. 

3473.  Contiguous  territory — Hearing. — Sec.  309.     The  board 
of  directors,  at  the  time  and  place  mentioned  in  said  notice,  or 
at  such  time  or  times  to  which  the  hearijig  of  said  petition  may 
adjourn,  shall  proceed  to  hear  the  petition,  and  all  objections; 


109 

thereto,  presented  in  writing  by  any  person,  showing  cause  as 
aforesaid,  why  said  petition  should  not  be  granted.  The  failure 
of  any  person  interested  to  show  cause,  in  writing,  as  aforesaid, 
shall  be  deemed  and  taken  as  an  assent  on  his  part  to  the  in- 
clusion of  such  lands  in  said  district  as  prayed  for  in  said  peti- 
tion. [L. '05,  p.  266,  §34. 

3474.  Payment. — Sec.  310.    The  board  of  directors,  to  whom 
such  petition  is  presented,  may  require  as  a  condition  precedent 
to  the  granting  of  the  same,  that  the  petitioners  shall  severally 
pay  to  such  district  such  respective  sums,  as  nearly  as  the  same 
can  be  estimated  by  the  board,  as  said  petitioners  or  their  grant- 
ors would  have  been  required  to  pay  to  such  district  as  assess- 
ments for  the  payment  of  its  pro  rata  share  of  all  bonds  and  the 
interest  thereon,  which  may  have  previously  thereto  been  issued 
by  said  district  had  such  lands  been  included  in  such  district  at 
the  time  the  same  was  originally  formed  or  when  said  bonds 
were  so  issued.     [L.  '05,  p.  266,  §35.  r 

3475.  Boundaries — Orders. — Sec.  311.     The  board  of  directors 
if  they  deem  it  not  for  the  best  interests  of  the  district  to  include 
therein  the  lands  mentioned  in  the  petition,  shall  by  order  reject 
the  said  petition,  but  if  they  deem  it  for  the  best  interests  of  the 
district  that  said  lands  be  included  the  board  may  order  that  the 
district  be  so  changed  as  to  include  therein  the  lands  mentioned 
in  the  said  petition.     The  order  shall  describe  the  entire  boun- 
daries of  the  district  with  the  lands  so  included,  if  the  district 
boundaries  be  changed  thereby,  and  for  that  purpose  the  board 
may  cause  a  survey  to  be  made  of  such  portion  of  such  boundaries 
as  may  be  deemed  necessary,  Provided,  If  within  thirty  days  from 
the  making  of  such  order  a  majority  of  the  qualified  electors  of 
the  district  protest  in  writing  to  said  board  against  the  inclusion 
of  such  lands  in  said  district,  said  order  shall  be  held  for  naught 
and  such  lands  shall  not  be  included  therein.     [L.  '05,  p.  266,  §36, 

3476.  Order— Record— Effect.— Sec.    312.     Upon    the    allow- 
ance of  such  petition  and  in  case  no  protest  has  been  filed  with 
the  board  within  thirty  days  after  the  entry  of  said  order  as 
aforesaid,  a  certified  copy  of  the  order  of  the  board  of  directors 
making  such  change,  and  a  plat  of  such  district,  showing  such 
change,  if  any,  certified  by  the  president  and  secretary,  shall  be 
filed  for  record  in  the  office  of  the  clerk  and  recorder  of  each 
county  in  which  are  situate  any  of  the  lands  of  the  district,  and 
the  district  shall  remain  an  irrigation  district,  as  fully  to  every 
intent  and  purpose  as  if  the  lands  which  are  included  in  the 
district  by  the  change  of  the  boundaries  as  aforesaid,  had  been 
included  therein  at  the  organization  of  the  district;  and  said 
district  as  so  changed  and  all  the  lands  therein  shall  be  liable 


110 

for  all  existing  obligations   and  indebtedness  of  the  organized 
district.     [L.  '05,  p.  267,  §37. 

3477.  Records — Evidence. — Sec.  313.     Upon  the  filing  of  the 
copies  of  the  order  and  the  plat,  as  in  the  last  preceding  section 
mentioned,  the  secretary  shall  record  in  the  minutes  of  the  board 
the  petition  aforesaid;  and  the  said  minutes,  or  a  certified  copy 
thereof,  shall  be  admissible  in  evidence  with  the  same  effect  as 
the  petition.     [L.  '05,  p.  267,  §38. 

3478.  Legal  representatives  petitioners. — Sec.  314.     A  guar- 
dian, executor  or  an  administrator  of  an  estate,  who  is  appointed 
as  such  under  the  laws  of  this  state,  and  who,  as  such  guardian, 
executor  or  administrator,  is  entitled  to  the  possession  of  the 
lands  belonging  to  the  estate  which  he  represents,  may  on  be- 
half of  his  ward  or  the  estate  which  he  represents,  upon  being 
thereunto  authorized  by  the  proper  court,  sign  and  acknowledge 
the  petition  in  this  act  mentioned,  and  may  show  cause,  as  in  this 
act  mentioned,  why  the  boundaries  of  the  district  should  not  be 
changed.     [L.  '05,  p.  267,  §39. 

3479.  Eedivision  of  district — Election  of  Officers. — Sec.     315. 
In  case  of  the  inclusion  of  any  land  within  any  district  by  pro- 
ceeding under  this  act  the  board  of  directors  shall,  at  least  thirty 
days  prior  to  the  next  succeeding  general  election,  make  an  order 
redividing  such  district  into  three  divisions,  as  nearly  equal  in 
size  as  may  be  practicable,  which  shall  be  numbered  first,  second 
and  third,  and  one  director  shall  thereafter  be  elected  by  each 
division.    For  the  purposes  of  election  the  board  of  directors  shall 
establish  a  convenient  number  of  election  precincts  in  said  dis- 
tricts, and  define  the  boundaries  thereof,  which  said  precincts 
may  be  changed  from  time  to  time  as  the  board  may  deem  neces- 
sary.    [L. '05,  p.  268,  §40. 

3480.  Exclusion  of  lands. — Sec.  316.     Any  tract  of  land  in- 
cluded within  the  boundaries  of  any  such  district,  at  or  after  its 
organization,  under  the  provisions  of  this  act,  may  be  excluded 
therefrom,  in  the  manner  herein  prescribed,  but  such  exclusion 
of  land  from  the  district  shall  not  impair  or  affect  its  organiza 
tion,  or  its  rights  in  or  to  property,  or  any  of  its  rights  or  privi- 
leges of  whatever  kind  or  nature ;  nor  shall  such  exclusion  affect, 
impair  or  discharge  any  contract,  obligation,  lien  or  charge  for 
or  upon  which  it  would  or  might  become  liable  or  chargeable,  had 
such  land  not  been  excluded  from  the  district.     [L.  '05,  p.  268,  §41. 

3481.  Petition  for  exclusion. — Sec.  317.    The  owner  or  own- 
ers in  fee  of  any  lands  constituting  a  portion  of  any  irrigation 
district  may  file  with  the  board  of  directors  of  the  district,  a 
petition  praying  that  such  lands  may  be  excluded  and  taken  from 
said  district.     The  petition  shall  describe  the  lands  which   the 


Ill 

petitioners  desire  to  have  excluded,  but  the  description  of  such 
lands  need  not  be  more  particular  than  required  when  lands  are 
entered  in  the  assessment  book  by  the  county  assessor.  Such 
petition  must  be  acknowledged  in  the  same  manner  and  form  as 
is  required  in  case  of  a  conveyance  of  land.  [L.  '05,  p.  268,  §42, 

[For  form  of  acknowledgment  see  section  691.] 

3482.  Same— Notice.—  Sec.  318.    The  secretary  of  the  board 
of  directors  shall  cause  a  notice  of  the  filing  of  such  petition 
to  be  published  for  at  least  three  weeks  in  some  newspaper  pub- 
lished in  the  county  where  the  office  of  the  board  of  directors  is 
situated,  and  if  any  portion  of  said  district  lie  within  another 
county  or  counties,  then  said  notice  shall  be  so  published  in  a 
newspaper  published  within  each  of  said  counties ;  or  if  no  news 
papers  be  published  therein,  then  by  posting  such  notice  for  the 
same  time  in  at  least  three  public  places  in  said  district,  and  in 
case  of  the  posting  of  said  notices,  one  of  said  notices  must  be. 
so  posted  on  the  lands  proposed  to  be  excluded.    The  notice  shall 
state  the  filing  of  such  petition,  the  names  of  the  petitioners, 
description  of  the  lands  mentioned  in  said  petition,  and  the  prayer 
of  said  petitioners;   and   it  shall  notify   all  persons  interested 
to  appear  at  the  office  of  said  board  at  a  time  named  in  said  no- 
tice, and  show  cause  in  writing,  if  any  they  have,  why  said  peti- 
tion should  not  be  granted.     The  time  to  be  specified  in  the  no- 
tice at  wrhich  they  shall  be  required  to  show  cause  shall  be  the 
regular  meeting  of  the  board  next  after  the  expiration  of  the 
time  for  the  publication  of  the  notice.     The  petitioner  or  peti- 
tioners shall  advance  to  the  secretary  sufficient  money  to  pay 
the  estimated  cost  of  all  proceedings  under  such  petition  before 
the  secretary  shall  give  such  notice.     [L.  '05,  p.  269,  §43. 

3483.  Same — Hearing. — Sec.  319.    The  board  of  directors  at 
the  same  time  and  place  mentioned  in  the  notice,  or  at  the  time 
or  times  to  which  the  hearing  of  said  petition  may  be  adjourned, 
shall  proceed  to  hear  the  petition  and  all  objections  thereto,  pre- 
sented in  writing  by   any  persons,   showing  cause  as  aforesaid 
why  the  prayer  of  said  petitioner  should  not  be  granted.     The 
filing  of  such  petition   with  such  board  as  aforesaid,   shall  be 
deemed  and  taken  as  an  assent  by  each  and  all  of  such  petitioners 
to  the  exclusion  from  such  district  of  the  lands  mentioned  in  the 
petition,  or  any  part  thereof.     [L.  '05,  p.  269,  §44. 

3484.  Same— Orders.— Sec.  320.     The  board  of  directors,  if 
they  deem  it  not  for  the  best  interest  of  the  district  that  the  lands 
mentioned,   in  the  petition  or  some  portion  thereof,  should  be 
excluded  from  said  district,  shall  order  that  said  petition  be  de- 
nied ;  but  if  they  deem  it  for  the  best  interest  of  the  district  that 
the  lands  mentioned,  in  the  petition,  or  some  portion  thereof,  be 
excluded  from  the  district,  and  if  there  are  no  outstanding  bonds 


112 

of  the  district,  then  the  board  may  order  the  lands  mentioned  in 
the  petition,  or  some  defined  portion  thereof,  to  be  excluded  from 
the  district.  Provided,  If  within  thirty  days  from  the  making  of 
such  order  a  majority  of  the  qualified  electors  of  the  district 
protest  in  writing  to  said  board  against  the  exclusion  of  such 
lands  from  said  district,  said  order  shall  be  held  for  naught  and 
such  lands  shall  not  be  excluded  therefrom.  [L.  '05,  p.  269,  §45. 

3485.  Order— Record— Effect.— Sec.    321.     Upon    the    allow- 
ance of  such  petition  and  in  case  no  protest  has  been  filed  with 
the  board  within  thirty  days  after  the  entry  of  said  order  as 
aforesaid,  a  certified  copy  of  the  order  of  the  board  of  directors 
making  such  change  and  a  plat  of  such  district  showing  such 
change,  certified  by  the  president  and  secretary,  shall  be  filed 
for  record  in  the  office  of  the  clerk  and  recorder  of  each  county 
in  which  are  situate  any  of  the  lands  of  the  district,  and  the 
district  shall  remain  an  irrigation  district  as  fully  to  every  intent 
and  purpose  as  if  the  lands  which  are  excluded  by  the  change  of 
the  boundaries  as  aforesaid,  had  not  been  excluded  therefrom. 
[L.  '05,  p.  270,  §46. 

3486.  Division  of  districts. — Sec.  322.     At  least  thirty  days 
before  the  next  general  election  of  such  district  the  board  of  di- 
rectors thereof  may  make  an  order  dividing  said  district  into 
three  divisions,  as  nearly  equal  in  size  as  practicable,  which  shall 
be  numbered  first,  second  and  third,  and  one  director  shall  be 
elected  for  each  division  by  the  qualified  electors  of  the  whole 
district.     For  the  purpose  of  election  in  such  district  the  said 
board  of  directors  must  establish  a  convenient  number  of  election 
precincts,  and  define  the  boundaries  thereof,  which  said  precincts 
may  be  changed  from  time  to  time,  as  the  board  of  directors  may 
deem  necessary.     [L.  '05,  p.  270,  §47. 

3487.  Dissolution  of  district — Election. — Sec.  323     Whenever 
a  majority  of  the  resident  freeholders,  representing  a  majority 
of  the  number  of  acres  of  the  irrigable  land,  in  any  irrigation 
district  organized,  or  hereafter  to  be  organized,  under  this  act, 
shall  petition  the  board  of  directors  to  call  a  special  election,  for 
the  purpose  of  submitting  to  the  qualified  electors  of  said  irriga- 
tion district  a  proposition  to  vote  on  the  dissolution  of  said  irri- 
gation district,  setting  forth  in  said  petition,  that  all  bills  and 
claims  of  every  nature  whatsoever  have  been  fully  satisfied  and 
paid,  it  shall  be  the  duty  of  said  directors,  if  they  shall  be  satis- 
fied that  all  claims  and  bills  have  been  fully  satisfied,  to  call 
an  election,  setting  forth  the  object  of  the  said  election,  and  to 
cause  notice  of  said  election  to  be  published  in  some  newspaper 
in  each  of  the  counties  or  county  in  which  said  district  is  located, 
for  a  period  of  thirty   (30)   days  prior  to  said  election,  setting 


113 

forth  the  time  and  place  for  holding  said  election  in  each  of  the 
three  voting  precincts  in  said  district.  It  shall  also  be  the  duty 
of  the  directors  to  prepare  ballots  to  be  used  at  said  election  on 
which  shall  be  written  or  printed  the  words :  "For  dissolution — 
Yes/'  and  "For  dissolution— No."  [L.  '05,  p.  270,  §48, 

3488.  Same — Canvass — Record. — Sec.  324.    The  board  of  di- 
rectors shall  name  a  day  for  canvassing  the  vote,  and  if  it  shall 
appear  that  a  majority  of  said  ballots  contain  the  words,  "For 
Dissolution— Yes,"  then  it  shall  be  the  duty  of  said  board  of  di- 
rectors to  declare  said  district  to  be  disorganized,  and  shall  cer- 
tify to  the  county  clerk  of  the  respective  counties,  in  which  the 
district  is  situated,  stating  the  number  of  signers  to  said  petition. 

That  said  election  was  called  and  set  for  the day  of 

,  month  of year.     That  said  election  was 

held  and  that  so  many  votes  (stating  the  number)  had  been  cast 
for,  and  that  so  many  votes  (stating  the  number)  had  been  cast 
against  said  proposition,  said  certificate  to  bear  the  seal  of  the 
district,  and  the  signatures  of  the  president  and  secretary  of 
said  board  of  directors.     And  it  shall  be  the  duty  of  the  said 
respective  clerks  to  record  all  such  certificates  in  the  records  of 
the  respective  counties.    Should  it  appear  that  a  majority  of  the 
votes  cast  at  said  election  were   "For   Dissolution — No,"  then 
the  board  of  directors  shall  declare  the  proposition  lost  and  shall 
cause  the  result  and  the  vote  to  be  made  a  part  of  the  records  of 
said  irrigation  district.    [L.  '05,  p.  271,  §49. 

3489.  Judicial  examination  and  confirmation. — Sec.  325.    The 
board  of  directors  of  an  irrigation  district  organized  under  the 
provisions  of  this  act  may  commence  special  proceedings,  in  and 
by  which  the  proceedings  of  said  board  and  of  said  district  pro- 
viding for  and  authorizing  the  issue  and  sale  of  the  bonds  of 
said  district,  whether  said  bonds  or  any  of  them  have  or  have* 
not  been  sold,  or  disposed  of  may  be  judicially  examined,  ap- 
proved and  confirmed.    [L.  '05,  p.  271,  §50. 

3490.  Same— Petition.— Sec.  326.     Board  of  directors  of  the 
irrigation  district  shall  file  in  the  district  court  of  the  county  in 
which  the  lands  of  the  district,  or  some  portion  thereof,  are  sit- 
uated, a  petition,  praying,  in  effect,  that  the  proceedings  afore- 
said may  be  examined,  approved  and  confirmed  by  the  court.    The 
petition  stall  state  the  facts  showing  the  proceedings  had  for 
the  issue  and  sale  of  said  bonds,  and  shall  state  generally  that 
the  irrigation  district  was  duly  organized,   and  that  the  first 
board  of  directors  was  duly  elected,  but  the  petition  need  not 
state  the  facts  showing  such  organization  of  the  district,  or  the 
election  of  said  first  board  of  directors.     [L.  '05,  p.  272,  §51. 


114 

3491.  Same — Notice  of  hearing. — Sec.  327.     The  court  shall 
fix  the  time  for  the  hearing  of  said  petition  and  shall  order  the 
clerk  of  the  court  to  give  and  publish  a  notice  of  the  filing  of 
said  petition.     The  notice  shall  be  given  and  published  for  three 
successive  weeks  in  a  newspaper  published  in  the  county  where 
the  office  of  the  district  is  situated.     The  notice  shall  state  the 
time  and  place  fixed  for  the  hearing  of  the  petition  and  the  prayer 
of  the  petitioners,  and  that  any  person  interested  in  the  organi- 
zation of  said  "district,  or  in  the  proceedings  for  the  isssue  or  sale 
of  said  bonds,  may,  on  or  before  the  day  fixed  for  the  hearing 
of  said  petition,  demur  to  or  answer  said  petition.    The  petition 
may  be  referred  to  and  described  in  said  notice  as  the  petition 

of  the   board   of  directors   of irrigation   district, 

(giving  its  name)    praying  that  the  proceedings   for  the  issue 
and  sale  of  said  bonds  of  said  district  may  be  examined,  approved 
and  confirmed  by  the  court.     [L.  '05,  p.  272,  §52. 

3492.  Same — Answer — Pleading. — Sec.  328,     Any  person  in- 
terested in  said  district,  or  in  the  issue  or  sale  of  said  bonds,  may 
demur  to  or  answer  said  petition.    The  provisions  of  the  code  of 
civil  procedure  respecting  the  demurrer  and  answer  to  a  verified 
complaint  shall  be  applicable  to  a  demurrer  and  answer  to  said 
petition.     The  person  so  demurring  and  answering  said  petition 
shall  be  the  defendant  to  the  special  proceeding,  and  the  board 
of  directors  shall  be  the  plaintiff.     Every  material  statement  of 
the  petition  not  specifically  controverted  by  the  answer  shall,  for 
the  purpose  of  said  special  proceeding,  be  taken  as  true,  and  each 
person  failing  to  answer  the  petition  shall  be  deemed  to  admit 
as  true  all  the  material  statement  of  the  petition.    The  rules  of 
pleading  and  practice   relating  to   appeals  and   writs  of  error 
provided  by  the  code  of  civil  procedure  which  are  not  inconsistent 

•with  the  provisions  of  this  act  are  applicable  to  the  special  pro- 
ceedings herein  provided  for.    [L.  '05,  p.  273,  §53. 

3493.  Same— Determination— Costs.— Sec.     329.      Upon    the 
hearing  of  such  special  proceeding  the  court  shall  find  and  de- 
termine whether  the  notice  of  the  filing  of  the  petition  has  been 
duly  given  and  published  for  the  time  and  in  the  manner  in  this 
act  prescribed,  and  shall  have  power  and  jurisdiction  to  examine 
and  determine  the  legality  and  validity  of,  and  approve  and  con- 
firm, each  and  all  of  the  proceedings  for  the  organization  of  said 
district  under  the  provisions  of  said  act,  from  and  including  the 
petition  for  the  organization  of  the  district,  and  all  other  pro- 
ceedings which  may  affect  the  legality  or  validity  of  said  bonds, 
and  the  order  of  the  sale  and  the  sale  thereof.     The  court,  in 
inquiring  into  the  regularity,  legality  or  correctness  of  said  pro- 
ceedings, must  disregard  any  error,  irregularity  or  omission  which 
does  not  affect  the  substantial  rights  of  the  parties  to  said  special 


115 

proceedings;  and  the  court  may  by  decree  approve  and  confirm 
such  proceedings  in  part,  and  disapprove  and  declare  illegal  or 
invalid  other  or  subsequent  parts  of  the  proceedings.  The  costs 
of  the  special  proceedings  may  be  allowed  and  apportioned  be- 
tween the  parties,  in  the  discretion  of  the  court.  [L.  -'05,  p. 
273,  §54. 

3494.  Repeal— Saving  Clause.— Sec.  330.  That  an  act  en- 
titled an  act  to  provide  for  the  organization  and  government  of 
irrigation  districts,  etc.,  approved  April  12th,  1901,  and  all  acts 
and  parts  of  acts  amendatory  thereof,  be  and  the  same  are  here- 
by repealed.  Provided,  Nothing  herein  contained  shall  invalidate 
or  affect  any  act  or  proceeding  done  or  pending  thereunder;  but 
all  such  pending  proceedings  may  be  continued  and  concluded 
under  such  repealed  provisions,  the  same  as  if  this  statute  had 
not  been  adopted,  or  may  be  continued  or  concluded  under  the 
provisions  of  this  act;  And,  provided,  -further,  That  nothing  here- 
in contained  shall  impair  the  organization,  rights,  powers  and 
privileges  of  any  irrigation  district  organized  under  any  act  or 
provision  so  repealed.  [L.  '05,  p.  273,  §55. 


IX.     OFFENSES. 

Section.  Section. 

3495.  Cutting  or  breaking  gate,  3497.     Penalty    for    interfering 

bank,    flume,    etc. — Pen-  with  adjusted  headgates. 

alty.  3498.     Jurisdiction  of  justice  of 

3496.  Jurisdiction   of  justice  of  the  peace. 

the  peace. 

3495.  Cutting  or  breaking-  gate,  bank,  flume,  etc. — Penalty. — 
Seci  331.  Any  person  or  persons  who  shall  knowingly  and  wil- 
fully cut,  dig,  break  down  or  open  any  gate,  bank,  embankment 
or  side  of  any  ditch,  canal,  flume,  feeder  or  reservoir  in  which 
such  person  or  persons  may  be  a  joint  owner,  or  the  property  of 
another,  or  in  the  lawful  possession  of  another  or  others,  and 
used  for  the  purposes  of  irrigation,  manufacturing,  mining  or 
domestic  purposes,  with  intent  maliciously  to  injure  any  person, 
association  or  corporation,  or  for  his  or  her  own  gain,  unlaw- 
fully, with  intent  of  stealing,  taking  or  causing  to  run  or  pour 
out  of  such  ditch,  canal,  reservoir,  feeder  or  flume,  any  water  for 
his  or  her  "own  profit,  benefit  or  advantage,  to  the  injury  of  any 
other  person,  persons,  association  or  corporation,  lawfully  in 
the  use  of  such  water  or  of  such  ditch,  canal,  reservoir,  feeder 
or  flume,  he,  she  or  they  so  offending  shall  be  deemed  guilty  of 
a  misdemeanor,  and  on  conviction  thereof  shall  be  fined  in  any 
sum  not  less  than  five  dollars  nor  more  than  three  hundred  dol- 


116 

lars,  and  may  be  imprisoned  in  the  count}'   jail  not  exceeding 
ninety  days.     [G.  S.,  §1759;  L.  '81,  p.  163,  §1. 

[Penalty  for  damaging  bridge  or  flume.    Section  994.] 

3496.  Jurisdiction  of  justices  of  the  peace. — Sec.  332.     Jus- 
tices of  the  peace  shall  have  jurisdiction  of  all  offenses  under 
the  provisions  of  this  act,  saving  to  any  party  defendant  the 
right  to  be  tried  by  a  jury  as  in  other  criminal  cases  before 
such  justices,  now  provided  for  by  law;  and.  also  the  right  to 
appeal  in  manner  and  form  as  by  law,  now,  or  hereafter  to  be 
provided   for  by   law,   in   criminal   cases   before   such   justices. 
[G.  S.,  §1761;  L.  '81,  p.  163,  §2. 

[For  provisions  governing  appeals  see  section  3869.] 

3497.  Penalty    for    interfering    with    adjusted    headgates.— 
Sec.  333.     Every  person  who  shall  wilfully  and  without  authority 
open,  close,  change  or  interfere  with  any  headgate  of  any  ditch, 
or  any  water  box  or  measuring  device  of  any   ditch   for   the 
receiving  or  delivery  of  water,  after  the  headgate  of  the  ditch 
has  been  adjusted  by  and  is  in  the  control  of  the  water  com- 
missioner, or  after  such  water  box  or  measuring  device  has  been 
adopted  by  the  ditch  officer  in  charge,  shall  be  deemed  guilty  of 
a  misdemeanor  and  on  conviction  thereof  shall  be  fined  in  a 
sum  not  more  than  $300.00,  or  imprisoned  in  the  county  jail  not 
exceeding  sixty  days,  or  both  such  fine  and  imprisonment,  in  the 
discretion  of  the  court. 

Any  person  who  shall  be  found  using  water  taken  through 
any  such  headgate,  water  box  or  measuring  device  so  unlawfully 
interfered  with,  shall  prima  facie  be  deemed  guilty  of  a  violation 
of  this  section.  [L.  '01,  p.  196,  §1;  amending  G.  S.,  §1755; 
L.  '79,  p.  108,  §44. 

3498.  Jurisdiction  of  justice  of  the  peace. — Sec.    334.      Jus- 
tices of  the  peace  shall  have  jurisdiction  to  hear,  try  and  de- 
termine actions  brought  for  violations  of  this  act,  subject  to  the 
right  of  appeal  as  provided  for  in  cases  of  assault  and  battery. 
[L.  '01,  p.  197,  §2. 

[For  appeal  in  cases  of  assault  and  battery  see  section  3869.] 
[For  bribery  of  water  commissioner  see  section  1723.] 
[Penalty  for  failure  to  cover  ditch,  see  section  3243.] 
[Penalty  for  polluting  stream,  see  section  1817.] 
[Penalty  for  allowing  water  to  waste,  see  section  3240.] 
[Unlawful  to  cut  trees  which  conserve  the  snow.    Section  2626.] 


117 


X. 


STATE  CANALS  AND  RESERVOIRS  AND  THE  CONTROL 
THEREOF. 


Section. 

3499.  Penitentiary    commission- 

ers may  locate  and  con- 
struct. 

3500.  State   engineer   shall  sur- 

vey, lay  out  and  locate. 

3501.  Rights  and  powers  given 

hoard. 

3502.  Title  shall  vest  in  state. 

3503.  Contract    for    and    lease 

water  rights. 

3504.  Aiding    in    the    construc- 

tion. 

3505.  Board  of  control  of  canal 

No.  1. 

3506.  Control    turned     over    to 

land  board. 

3507.  Use    of    water — Lease    of 

lands. 

3508.  Rights     and     powers     of 

board  of  control. 

3509.  Establish  annual  charges 

for  use  of  water. 

3510.  Title  to  canal  in  state. 

3511.  Board  construct  laterals. 

3512.  Certificates     received     in 

lieu    of    money    for 
charges. 

3513.  State     board     of     control 

have  traveling  expenses. 

3514.  Location  of  Mesa  county 

state  ditch. 

3515.  Property  of  the  State. 

3516.  Board     of    penitentiary 

commissioners    may    is- 
sue and  sell  certificates. 

3517.  Construction  of  ditch. 

3518.  Right  of  way. 

3519.  Cash    subscriptions,    how 

used. 

3520.  Qonvicts  returned  to  peni- 

tentiary, when. 

3521.  Contracts   for   transporta- 

tion. 

3522.  Superintendent     of     con- 

struction— Salary. 

3523.  Deputy  warden  in  charge 

of  convicts. 

3524.  Manager  of  ditch — Salary. 

3525.  Lease  of  water  rights. 

3526.  State     engineer     locate 

canal  .No.  3. 

3527.  Feeders  for  South  Platte 

and  Arkansas. 

3528.  Property  of  the  state. 

3529.  Coal      creek     reservoir — 

Rights  to  water. 


Section. 

3530.  Property    of    state— De- 

livery of  water. 

3531.  Shall    not    impair    vested 

rights. 

3532.  Damaging  reservoir  a  mis- 

demeanor. 

3533.  Reservoir  —  Apishapa 

creek. 

3534.  Location. 

3535.  Board  of  construction. 

3536.  '  Property  of  state. 

3537.  Sale  and  lease  of  water. 

3538.  Moneys    paid    to    state 

treasurer. 

3539.  Reservoir      Hardscrabble 

creek. 

3540.  Plans  and  specifications. 

3541.  Board  of  construction. 

3542.  Property  of  state — Dis- 

position of  water. 

3543.  Acquired    rights    not    im- 

paired. 

3544.  Maintenance    and    repair. 

3545.  Penalty  for  damaging  res- 

ervoir. 

3546.  Reservoir  —  Saguache 

creek. 

3547.  Board  of  construction. 

3548.  Property  of  state — Dispo- 

sition of  water. 

3549.  Acquired    rights    not    im- 

paired. 

3550.  Penalty  for  damaging  res- 

ervoir. 

3551.  Reservoir  —  Monument 

creek. 

3552.  Property  of  state — Dispo- 

sition of  water. 

3553.  Acquired    rights    not    im- 

paired. 

3554.  Penalty  for  damaging  res- 

ervoir. 

3555.  Reservoir  Chaffee  county. 

3556.  Board    of    construction — 

Powers  of  board. 

3557.  Property    of    state — Man- 

agement— Sale  of  water. 

3558.  Acquired    rights    not    im- 

paired. 

3559.  Penalty  for  damaging  res- 

ervoir. 

3560.  Control  of  Boss  Lake  res- 

ervoir. 

3561.  Land    board  -control 

ditches   and   reservoirs. 

3562.  County    control    of   reser- 

voirs. 


3499.     Penitentiary  commissioners  may  locate  and  construct. — 
Sec.  335.     That,  for  the  purpose  of  reclaiming,  by  irrigation,  state 


118 

and  other  lands,  and  for  the  purpose  of  furnishing  work  for  the 
convicts  confined  in  the  state  penitentiary,  the  board  of  commis- 
sioners of  the  state  penitentiary  is  hereby  authorized  to  locate, 
acquire  and  construct,  in  the  name  of  and  for  the  use  of  the  state 
of  Colorado,  ditches,  canals,  reservoirs  and  feeders,  for  irrigating 
and  domestic  purposes,  and  for  that  purpose  may  use  convict 
labor  of  persons  confined,  or  that  may  be  confined,  as  convicts 
in  the  state  penitentiary  at  Canon  City.  [L.  '89,  p.  285,  §1, 

3500.  State  engineer  shall  survey,  lay  out  and  locate. — Sec. 
336.     The  state  engineer,  under  the  direction  of  the  board,  shall 
survey,  lay  out  and  locate  a  ditch  or  canal  upon  the  most  feasible 
route  on  either  side  of  the  Arkansas  river,  which  said  ditch  or 
canal  shall  be  of  sufficient  capacity  to  cover  at  least  thirty  thou- 
sand acres  of  good  arable  land  between  Canon  City  and  Pueblo; 
Provided,  That  work  shall  only  be  commenced  and  performed 
upon  one  main  ditch,  canal,  reservoir  or  feeder  at  a  time;  that 
a  second  shall  not  be  commenced  until  the  completion  of  the  first. 
[L.  -'89,  p.  285,  §2. 

3501.  Rights  and  powers  given  board. — Sec.  337.     The  said 
board  is  hereby  given  all  the  rights  and  powers  that  an  indi- 
vidual or  corporation  now  has,  or  may  hereafter  have,  under  the 
laws  of  the  state,  or  of  the  United  States,  to  acquire  the  right 
of  way  over,  upon  and  to  any  lands  necessary  for  it  to  use  or 
occupy   in   the   construction   and  maintenance  of  said   ditches, 
canals,  reservoirs  or  feeders.     [L.  '89,  p.  286,  §3. 

*  Only  material  sections  of  the  original  acts  establishing  ditches  and  res- 
ervoirs are  printed.  In  many  cases  later  appropriations  have  been  made  but  in 
most  instances  the  work  has  been  abandoned. 

3502.  Title  shall  vest  in  state.— Sec.  338.     That  the  title  to 
all  ditches,  canals,  reservoirs  or  feeders,  so  constructed  under 
this  act,  shall  vest  and  remain  in  the  state  of  Colorado,  and  the 
proceeds  thereof  shall  be  paid  into  the  state  treasury.     [L.  '89, 
p.  286,  §4. 

3503.  Contract  for  and  lease  water  rights. — Sec.  339.     That 
when  any  part  of  any  ditch,  canal,  reservoir  or  feeder  shall  be 
constructed  under  this  act,  said  board  of  penitentiary  commis- 
sioners may  contract  for  and  may  lease  water  rights,  upon  such 
terms  and  under  such  rules  and  regulations  as  may  be  adopted 
by  said  board  and  approved  by  the  governor  of  the  state,  to  such 
individuals   or  corporations   as   may  desire  to   lease   the  same. 
[L.  '89,  p.  286,  §5. 

[The  act  referred  to'  above  includes  sections  3499-3504.] 
[Is  above  section  amended  by  sections  3561  and  3562?] 

3504.  Aiding  in  the  construction. — Sec.   340.     That  for  the 
purpose  of  aiding  in  the  construction  of  said  ditches,  canals, 
reservoirs  and  feeders,  the  said  board  is  hereby  authorized  to 


119 

receive  subscriptions  uiid  advancements  of  money  from  persons 
owning  land  along  the  line  of  said  proposed  ditches,  canals, 
reservoirs  and  feeders,  or  persons  desiring  the  construction  of  the 
same,  and  to  issue  receipts  or  certificates  to  such  person  or  per- 
sons so  advancing  money  for  the  amount  thereof,  which  receipt 
or  certificate  shall  draw  interest  at  the  rate  of  seven  per  cent, 
per  annum,  and  both  principal  and  interest  shall  be  payable  in 
water  to  be  taken  from  said  ditches,  canals,  reservoirs  or  feeders, 
under  such  rules  and  regulations  as  may  be  adopted  by  said 
board  and  the  state  engineer,  and  approved  by  the  governor  of 
the  state.  [L.  '89,  p.  286,  §6. 

3505.  Board     of     control     canal     No.  1 — Duties. — Sec.   341. 
There  is  hereby  created  a  board  to  be  known  as  "The  board  of 
control  of  state  canal  No.  1  and  reservoirs  connected  therewith." 
The  said  board  shall  be  composed  of  the   lieutenant  governor, 
who  shall  be  chairman,  the  state  engineer  and  the  warden  of  the 
penitentiary.     The  secretary  of  the  state  board  of  land  commis- 
sioners shall  be  secretary  of  said  board  of  controj.     Said  board 
is  hereby  charged  with  the  duty  of  securing  the  early  completion 
of  state  canal  No.  1,  and  reservoirs  connected  therewith  and  of 
the  operation  and  maintenance  of  the  same  as  herein  provided. 
[L.  '93,  p.  441,  §1. 

[Sections  2-7  of  the  above  act  have  performed  their  function  and  are  there- 
fore not  printed.] 

3506.  Board    of    land    commissioners    assume    control. — Sec. 
342.     Upon  completion  of  said  canal  and  its  acceptance  and  ap- 
proval, as  hereinbefore  provided,  the  said  board  of  control  of 
state  canal  No.  1  and  reservoirs  connected  therewith,  shall  turn 
over  the  said  canal,  together  with  all  drawings,  specifications, 
reports  and  records  pertaining  to  said  canal  and  the  action  of 
said  board  of  control,  to  the  state  board  of  land  commissioners ; 
whereupon  the  state  board  of  land  commissioners  shall  assume 
control  of  said  canal  and  shall  thereinafter  control,  operate  and 
maintain  the  same  subject  to  such  provisions  of  law  as  may 
hereafter  be  made  and  established.     [L.  '93,  p.  445,  §8. 

[See  also  section  3561.] 

3507.  Use  of  water— Lease  of  lands.— Sec.  343.     It  shall  be 
the  duty  of  the  state  board  of  land  commissioners  to  cause  the 
waters  carried  in  the  state  canal  No.  1  and  reservoirs  connected 
'therewith  to  be  applied  to  the  irrigation  of  the  state  lands  and 
all  other  lands  lying  under  said  canal  at  the  earliest  convenient 
and  practicable  times,  and  as  a  means  among  others  to  effect 
such  use  of  water,  the  board  of  land  commissioners  are  author- 
ized to  offer  numerous  portions  of  said  lands  for  lease  at  such 
reasonable  prices,  and  for  such  periods,  not  exceeding  twenty 


120 

years,  as  will  be  conducive  to  the  rapid  settlement  of  such  lands 
and  the  early  use  of  such  waters.     [L.  '93,  p.  445,  §9. 

3508.  Rights  and  powers  of  board  of  control. — Sec.  344.  The 
said  board  of  control  of  state  canal  No.  1  and  reservoirs  con- 
nected therewith  is  here  given  all  the  rights  and  powers  that  an 
individual  or  corporation  now  has,  or  may  hereafter  have,  under 
the  laws  of  the  state,  or  of  the  United  States,  to  acquire  the 
right  of  way  over,  upon  and  to  any  lands  necessary  for  it  to  use 
or  occupy  in  the  construction  and  maintenance  of  such  canal. 
[L.  '93,  p.  445,  §10. 

3509.  Establish  annual  charges  for  carriage  of  water. — Sec. 
345.     It  shall  be  the  duty  of  the  state  board  of  land  commis- 
sioners to  establish  from  time  to  time  reasonable  annual  charges 
for  the  carriage  of  waters  or  sell  perpetual  rights  of  water  if 
deemed  by  it  more  expedient.     [L.  '93,  p.  446,  §11. 

[Is  the  above  section  superseded  by  section  3562?] 

3510.  Title  to  canal  in  state.— Sec.   346.     The  title  to  the 
said  canal  shall  vest  and  remain  with  the  state  of  Colorado,  and 
any  money  received  for  the  carriage  of  water  therein  shall  be 
devoted  to  the  maintenance  and  operation  of  such  canal,  and 
surplus  over  and  above  the  cost  of  operation,  and  maintaining 
such  canal,  shall  be  converted  into  the  state  treasury  and  applied 
by  the  state  treasurer  to  meeting  the  certificates  of  indebtedness 
herein  provided  for  and  interest  thereon.     [L.  '93,  p.  446,  §12. 

3511.  Board  construct  laterals. — Sec.   347.     It   shall   be   the 
duty  of  the  said  board  of  land  commissioners  to  construct  from 
time  to  time  and  as  rapidly  as  may  seem  to  such  board  advisable, 
lateral  ditches  and  the  necessary  appurtenances  thereto,  for  sup- 
plying the  lands  of  the  state  lying  under  said  canal  with  water 
for  irrigation,  and  to  see  that  all  of  such  lands  belonging  to  the 
state  are  brought  under  cultivation  within  a  reasonable  time. 
[L.  '93,  p.  446,  §13. 

3512.  Certificates  received  in  lieu  of  money  for  charges. — Sec. 

348.  Any  receipts  or  certificates  heretofore  issued  in  return  for 
subscriptions   and   advancement  of   money   by   persons   owning 
land  along  the  line  of  state  canal  No.  1,  and  reservoirs  connected 
therewith  shall  be  received  in  lieu  of  money  for  the  lawful  and 
reasonable  charges  for  the  carriage  of  water  in  the  said  canal, 
and  all  of  the  certificates  hereafter  issued  as  in  said  canal  or 
for  perpetual  water  rights  thereunder.     [L.  '93,  p.  446,  §14. 

3513.  State  board  of  control  have  traveling   expenses. — Sec. 

349.  The  members  of  the  state  board  of  control  of  state  canal 
No.  1,  and  reservoirs  connected  therewith  shall  be  entitled  to 
their  reasonable  traveling  expenses  while  performing  the  duties 


121 

herein  laid  upon  them  for  which  amounts  the  auditor  shall  draw 
warrants  upon  the  state  treasurer,  when  such  amounts  shall  be 
duly  certified  to  him  by  the  secretar}T  of  the  said  board  of  control. 
[I/ '93,  p.  446,  §15. 

3514.  Location  of  Mesa  county  state  ditch. — Sec.  350.     The 
state  engineer  under  the  direction  of  the  board  of  penitentiary 
commissioners  shall  lay  out,  survey  and  locate  a  ditch  or  canal 
and  laterals,  reservoirs  and  feeders  as  may  be  necessary  or  ex- 
pedient so  as  to  cover  all  the  land  practicable  in  the  Grand 
valley  in  Mesa  county.    The  headgate  of  the  said  ditch  or  canal 
shall  be  located  in  the  Hogback  canon,  and  the  water  for  said 
canal  shall  be  taken  out  of  the  Grand  river.     [L.  '91,  p.  335,  §1. 

3515.  Property  of  the  state.— Sec.  351.    The  said  ditch  shall 
be  known  as  the  Mesa  county  state  ditch,  and  during  the  con- 
struction of  the  same  and  when  constructed  shall  be  the  property 
of  the  state  of  Colorado  and  all  revenues  derived  therefrom  shall 
be  turned  into  the  state  treasury.     [L.  '91,  p.  336,  §2. 

3516.  Board  of  penitentiary  commissioners  may  issue  and  sell 
certificates.  — Sec.  352.    It  shall  be  the  duty  of  the  board  of  pen- 
itentiary commissioners  after  said  ditch  is  surveyed  to  issue  and 
sell  for  cash  certificates  bearing  seven  per  cent,  interest  from  the 
date  of  the  issuance  thereof,  the  principal  and  interest  of  which 
shall  be  receivable  by  the  state  of  Colorado  as  cash  for  water  to 
be  taken  out  of  said  canal  under  such  rules  and  regulations  as 
may  be  adopted  by  said  board  and  state  engineer  and  the  gov- 
ernor of  the  stated    [L.  '91,  p.  336,  §3. 

3517.  Construction  of  ditch.— Sec.  353.     That  after  the  sub- 
scription of  fifty  thousand  dollars  for  said  certificates  has  been 
received  by  said  board  and  twenty  per  cent,  of  the  same  has  been 
paid  in,  it  shall  be  the  duty  of  said  board  to  commence  the  con- 
struction of  said  ditch,  and  in  order  to  construct  the  same  the 
said  board  of  penitentiary  commissioners  shall  have  the  power 
and  authority  and  it  shall  be  their  duty  to  select  from  the  able- 
bodied  convicts  confined  in  the  state  penitentiary  "As  many  as 
are  not  otherwise  employed"  none  of  wrhom  shall  be  under  life 
sentence,  and  transport  the  said  convicts  to  a  general  headquar- 
ters for  the  construction  of  said  ditch  where  said  board  shall 
make  suitable  provision  for  the  safe  keeping  of  said  convicts  and 
said  convicts,  shall  be  used  underv  proper  guard  for  the  construc- 
tion of  said  ditch.     [L.  '91,  p.  336,  §4. 

3518.  Right  of  way. — Sec.  354.    The  said  board  shall  have 
the  right  and  power  to  purchase,  condemn  or  otherwise  lawfully 
acquire  a  right  of  way  for  the  said  canal  as  provided  in  other 
cases  and  for  said  purpose  may  sue  in  the  name  of  the  people  of 
the  state  of  Colorado.     [L.  '91,  p.  336,  §5. 


122 

3519.  Cash  subscriptions,  how  used. — Sec.  355.     Said  board 
shall  have  the  power  to  use  all  cash  subscriptions  for  the  pur- 
pose of  purchasing  provisions,  tools,  teams,  etc.,  for  the  con- 
struction of  said  ditch  or  may  receive  at  cash  valuation  gro- 
ceries, vegetables,  teams,  tools,  labor  and  other  things  necessary 
in   constructing  said  ditch,   on   subscription  for   certificates  as 
provided  in  section  three  of  this  act.     [L.  '91,  p.  336,  §(>. 

[Section  3  referred  to  is  section  3516.] 

3520.  Convicts    returned    to    penitentiary,    when. — Sec.  356. 
Five  days  before  the  expiration  of  the  term  of  confinement  of 
any  convict  or  convicts  employed  in  the  construction  of  said 
ditch  shall  expire,  he  or  they  shall  be  transported  to  the  peni- 
tentiary at  Canon  City  and  others  shall  be  taken  to  said  work 
in  his  or  their  places.     [L.  '91,  p.  337,  §7. 

3521.  Contracts  for  transportation. — Sec.  357.    Said  board  of 
penitentiary  commissioners  shall  have  the  power  and  authority 
to  obtain  or  make  a  contract  with  any  railroad  company  for 
rates  for  transporting  prisoners  to  and  from  said  work;  or  for 
transporting  material,  goods,  wares  or  merchandise  to  be  used 
in  the  construction  of  said  ditch;  and  in  advertising  for  bids 
for  general  penitentiary  provisions  and  supplies,  as  now  pro- 
vided by  law,  may  stipulate  that  such  proportion  of  said  pro- 
visions and  supplies  as  may  be  necessary  for  the  sustenance  of 
convicts  employed  in  the  construction  of  said  Mesa  county  state 
ditch   shall  be  delivered  at  the  general  headquarters   of   said 
ditch.     [L.  '91,  p.  337,  §8. 

3522.  Superintendent     of     construction— Salary. — Sec.     358. 
Said  board  may  select  one  of  their  number  who  shall  have  imme- 
diate charge  of  the  construction  of  said  ditch  and  shall  give  his 
personal  attention  to  the  same  and  when  so  selected  the  said 
member  of  said  board  shall  receive  in  addition  to  the  present 
compensation  two  thousand,  five  hundred  (2,500)    dollars    per 
year,  payable  out  of  the  funds  derived  from  the  sale  of  certifi- 
cates as  provided  in  section  three  of  this  act.     [L.  '91,  p.  337,  §9. 

3523.  Deputy  warden  in  charge  of  convicts. — Sec.  359.    The 
warden  of  said  penitentiary  may  appoint  a  deputy  warden  who 
shall  have  the  same  power  and  authority  as  he  now  possesses 
who  shall  be  placed  in  charge  of  the  convicts  employed  in  the 
construction  of  said  canal.     [L.  '91,  p.  337,  §10. 

3524.  Manager     of     ditch— Salary.— Sec.   360.     After   said 
canal  is  fully  completed  said  convicts  shall  be  returned  to  the 
penitentiary  at  Canon  City  and  the  governor  shall  appoint  with 
the  advice  and  consent  of  the  senate  a  competent  person  who 
shall  manage  and  superintend  said  ditch  for  and  on  behalf  of 


the  state  and  who  shall  receive  fifteen  hundred  dollars  per  year 
salary  to  be  paid  out  of  the  income  from  said  ditch  upon  the 
order  of  board  of  penitentiary  commissioners.  [L.  '91,  p.  337. 
§11. 

3525.  Lease  of  water  rights. — Sec.  361.    When  said  ditch  or 
any  of  its  reservoirs  or  feeders  shall  be  constructed  under  this 
act  said  board  of  penitentiary  commissioners  may  contract  for 
the  carriage  and  delivery  of  water,  and  may  lease  water  rights 
upon  such  terms  and  under  such  rules  and  regulations  as  may 
be  adopted  by  said  board  and  approved  by  the  governor  of  the 
state  to  such  individuals  or  corporations  as  may  desire  to  lease 
the  same.     [L.  '91,  p.  337,  §12. 

3526.  State   engineer  locate  canal  number   three. — Sec.   362. 
The  state  engineer,  under  the  direction  of  said  board  of  con- 
trol, shall  survey,  locate  and  lay  out  a  tunnel  or  canal  which 
shall  be  known  as  "State  Canal  No.  3,"   commencing  at  the 
most  feasible  point  on  the  Gunnison  river  below  the  mouth  of 
the  Cimarron  river;  thence  in  a  westerly  direction  to  the  Un- 
compahgre  river  valley,  thence  with  laterals  running  in  various 
directions  from  said  main  canal  to  cover  and  redeem  the  great- 
est body  of  arable  land  in  said  counties  of  Montrose  and  Delta. 
[L.  '01,  p.  369,  §2. 

[Canal  No.  3  established  by  the  act  of  1901  was  ceded  to  the  United  States 
by  section  6928.] 

3527.  Feeders    for    South    Platte    and    Arkansas.— Sec.    363. 
That  there  is  hereby  appropriated  out  of  any  funds  in  the  state 
treasury  belonging  to  the  internal  improvement  fund  not  other 
wise   appropriated  the   sum   of  three  thousand  dollars,   or  so 
much  thereof  as  is  necessary  to  defray  the  necessary  expenses 
of  a  preliminary  survey  and  investigation  of  the  sources  of  the 
Grand,  Laramie  and  North  Platte  river  systems,  with  reference 
to   turning   the   unappropriated   waters   thereof   eastward,    and 
causing  them  to  flow  into  and  through  the  tributaries  of  the 
South  Platte  and  Arkansas  river  .  systems  for  the  purpose  of 
irrigation  and  other  beneficial  uses.     [L.  '89,  p.  208,  §1. 

3528.  Property     of     the     state.— Sec.    364.    That    the    said 
ditches,   canals  and  waterworks,  and  the  waters  when  so  di- 
verted, shall  be  the  property  of  the  state,  and  the  waters  so 
supplied  shall  be  turned  into  the  said  South  Platte  and  Arkan- 
sas rivers  and  their  tributaries  for  the  purpose  of  supplying 
deficiencies   of  water  for  appropriations    heretofore    made    or 
hereafter  to  be  made  in  the  order  of  such  appropriation  by  the 
several   canals  and  reservoirs  taken  from  said   streams.     The 
state  engineer,  or  in  his  stead  such  person  or  persons  as  may  be 
duly  appointed  for  that  purpose  according' to  law,  shall  deter- 


124 

mine,  regulate  and  provide  for  the  delivery  of  such  waters  to 
such  ditches,  canals  and  reservoirs,  according  to  their  several 
appropriations,  decrees  of  court,  capacities  and  necessities.  [L. 
'89,  p.  210,  §4. 

[Survey  in  Boulder  county.    L.  '89,  p.  46.] 
[Survey  near  Walsenburg,  L.  '07,  p.  134.] 

3529.  Coal    Creek    reservoir — Eights    to    water. — Sec.    365. 
There  is  hereby  appropriated  out  of  any  money  in  the  state 
treasury  belonging  to    the    internal    improvement    permanent 
fund,  and  any  money  which  may  hereafter  be  credited  to  said 
fund  and  not  otherwise  appropriated,  the  sum  of  twenty  thou- 
sand (20,000)  dollars,  or  as  much  thereof  as  may  be  necessary, 
as  is  hereinafter  provided,  for  the  construction  of  a  reservoir 
at  Coal  creek,  upon  or  adjacent  to  sections  twenty,  twenty-eight, 
or  thirty-four,  township  four  south,  range  sixty-five  west,  in  the 
county  of  Arapahoe,  to  store  the  water  of  floods  for  the  purpose 
of  irrigation  and  other  beneficial  uses;  Provided,  That  no  part 
of  said  appropriation  shall  be  used  for  the  purchase  of  land,  and 
that  the  said  reservoir  shall  not  be  constructed  except  upon 
lands  the  title  to  which  shall  first  be  re- vested  in  the  state; 
And,  provided,  further,  That  all  citizens  of  the  state  shall  have 
free  and  equal  rights  to  the  use  and  benefits  of  said  reservoir 
when  constructed,  subject  only  to  such  reasonable  rules  and  re- 
strictions as  may  be  provided  by  law  for  the  protection  of  the 
property.     [L.  '89,  p.  215,  §1. 

3530.  Property  of  state— Delivery  of  water,— Sec.  366.    That 
the  said  reservoir  and  waterworks,   and  the  waters  when  so 
collected  and  stored,  shall  be  the  property  of  the  state;  and  the 
water  so  supplied  shall  be  turned  into  Coal  creek  or  canal,  for 
the  purpose  of  supplying  water  for  appropriations  heretofore 
made,  or  hereafter  to  be  made,  in  the  order  of  such  appropria- 
tion,  by   the   several   canals   and   reservoirs   taken   from    said 
stream.    The  state  engineer,  or  in  his  stead  such  person  or  per- 
sons as  may  be  duly  appointed  for  that  purpose  according  to 
law,  shall  determine,  regulate  and  provide  for  the  delivery  of 
such  water  to  such  ditches,  canals  and  reservoirs,  according  to 
their  several   appropriations,   decrees   of  court,   capacities   and 
necessities.     [L.  '89,  p.  217,  §6. 

3531.  Shall  not  impair  vested  rights.— Sec.  367.    Nothing  in 
this  act  shall  be  construed  so  as  to  impair  any  rights  acquired, 
or  that  may  be  acquired,  under  or  by  virtue  of  the  irrigation 
laws  of  the  state  of  Colorado.     [L.  '89,  p.  217,  §7. 

3532.  Damaging  reservoir  a  misdemeanor. — Sec.    368.      Any 
person  interfering  with  or  damaging  said  reservoir  or  any  of 
its  approaches  or  appurtenances,  shall  be  deemed  guilty  of  a 


125 

misdemeanor,  and,  upon  conviction  thereof,  shall  be  fined  not 
exceeding  one  thousand  (1,000)  dollars,  or  by  imprisonment  in 
the  county  jail  not  exceeding  one  year.  [L.  '89,  p.  217,  §8. 

3533.  Reservoir— Apishapa  creek.— Sec.  369.     That  there  is 
hereby  'appropriated  out  of  any  moneys  in  the  state  treasury 
belonging  to  the  internal  improvement  permanent  fund  and  any 
moneys  which  may  be  hereafter  credited  to  said  fund  not  other- 
wise appropriated  the  sum  of  fifteen  thousand  (15,000)  dollars 
for  the  construction  of  a  reservoir  on  the  Apishapa  creek  in 
the  county  of  Las  Animas,  for  the  storage  of  the  surplus  waters 
of  said  creek,  to  pay  for  surveying  the  same.     [L.  '91,  p.  345,  §1. 

3534.  Location. — Sec.  370.     Said  reservoir  shall  be  erected 
at  some  suitable  place,  to  be  determined  by  the  state  engineer, 
west  of  the  Denver  and  Rio  Grande  railway,  on  or  near  the 
Apishapa  creek.     [L.  '91,  p.  346,  §2. 

3535.  Board  of  construction. — Sec.  371.     The  governor,  sec- 
retary of  state  and  state  engineer  are    hereby    constituted    a 
board,  under  whose  supervision  and  control  said  reservoir  shall 
be  located  and  constructed.     Said  board  shall  take  charge  of 
said  reservoir,  until  otherwise  provided  by  law,  and  make  all 
proper  regulations  for  the  sale  or  disposal  of  the  waters  stored 
therein.     [L.  '91,  p.  346,  §3. 

3536.  Property  of  state. — Sec.  372.     Said  reservoir  shall  be 
the  property  of  the  state,  and  all  lands  covered  by  said  reser- 
voir, or  required  for  the  use  of  ditches  shall  be  vested  in  the 
state  of  Colorado,  prior  to  the  letting  of  contracts  for  construc- 
tion of  such  reservoir  or  ditches.     [L.  '91,  p.  346,  §4. 

3537.  Sale  and  lease  of  waters. — Sec.  373.     Upon  the  com- 
pletion of  said  reservoir  the  board  appointed  in  section  3  of 
this  act  shall  take  such  steps  as  shall  be  necessary  to  sell  or 
lease  such  waters  as  will  in  the  judgment  of  said  board  bring 
in  the  mot  revenue  to  the  state.     [L.  '91,  p.  346,  §7. 

[Section  3  referred  to  is  section  3535.] 

3538.  Moneys  paid  to  state  treasurer. — Sec.  374.     All    mon- 
eys received  from  the  sale  or  leasing  of  the  water  stored  in  said 
reservoir  and  from  any  water  rights  sold,  either  in  connection 
with  lands  belonging  to  the  state  or  otherwise,  shall  be  paid 
to  the  state  treasurer  and  by  him  credited  to  the  internal  im- 
provement permanent  fund.     [L.  '91,  p.  347,  §8. 

3539.  Reservoir — Hardscrabble  creek. — Sec.     375.     There,   is 
hereby  appropriated  out  of  any  money  in  the  state  treasury 
belonging  to   the  internal  improvement  permanent  fund,   and 
any  money  which  may  hereafter  be  credited  to  said  fund  and 
not  otherwise  appropriated  the  sum  of  ten  thousand   (10,000) 


12G 

dollars,  or  as  iniu-li  thereof,  as  may  be  necessary,  as  hereinafter 
provided  for  the  construction  of  a  reservoir,  or  reservoirs,  at 
the  most  convenient  and  suitable  place,  or  places  to  be  selected 
by  the  state  engineer  in  township  21  range  69  west  in  the  coun- 
ty of  Ouster,  to  store  the  waters  of  the  Hard-scrabble-  creek,  and 
its  tributaries  for  the  purpose  of -irrigation,  and  other  beneficial 
uses.  [L.  '91,  p.  350,  §1. 

3540.  Plans  and  specifications. — Sec.  376.     As  soon  as  prac- 
ticable after  the  passage  and  approval  of  this  act,  the   state 
engineer  shall  make  the  necessary  arrangements  for  measuring 
the  flow  of  water  in  said  Hardscrabble  creek  with  a  view  of  con- 
structing a  reservoir  or  reservoirs,  of  sufficient  capacity  to  hold 
a  part  or  a  sufficient  quantity  of  the  waters  of  Hardscrabble 
creek,   and   its  tributaries   above   said   reservoir   or   reservoirs. 
Said   state  engineer,   shall  thereafter   calculate  and   determine 
the  required  capacity  of  such  reservoir,  or  reservoirs,  to  stow 
the  waters  flowing  in  said  creek  or  so  much  thereof  as  may  be 
necessary  during  the  months  of  April,  May,  and  June  of  each 
year,  and  prepare  plans  and  specifications  thereof.     [L.  '91,  p. 
350,  §2. 

3541.  Board     of     construction. — Sec.     377.     The     governor, 
state  engineer,  and  attorney  general,  shall  be,  and  hereby  are 
constituted  a  board  for  the  purpose  of  constructing  said  reser 
voir,  or  reservoirs,  and  taking  charge  of  same  until  otherwise 
provided  by  law.     [L.  '91,  p.  350,  §3. 

3542.  Property    of    state — Disposition    of    water. — Sec.    378. 
That  the  said  reservoir,  or  reservoirs,  and  waterworks  and  the 
waters  when  so  collected,  and  stored  shall  be  the  property  of 
the  state,  and  the  wrater  so  supplied  shall  be  turned  into  Hard 
scrabble  creek  or  canals  for  the  purpose  of  supplying  water  for 
appropriations  heretofore  made  or  hereafter  to  be  made  in  the 
order  of  such  appropriation  by  the  several  canals  and  reservoirs 
taken   from  said  stream.     The  state  engineer,  or  in  his   stead 
such  person,  or  persons  as  may  be  duly  appointed  for  that  pur- 
pose according  to  law.  shall  determine,  regulate  and  provide  for 
the  delivery  of  such  wrater  to  such  ditches,  canals  and  reservoirs 
according  to  their  several  appropriations,  decrees  of  court,  ca- 
pacities and  necessities.     [L.  '91,'  p.  351,  §6. 

3543.  Acquired  rights  not  impaired. — Sec.  379.     Nothing  in 
this  act  shall  be  construed  so  as  to  impair  any  rights  acquired, 
or  that  may  be  acquired  under,  or  by  virtue  of  the  irrigation 
laws  of  the  state  of  Colorado.     [L.  '91,  p.  351,  §7. 

3544.  Maintenance  and  repair. — Sec.  380.     When  said  reser- 
voir, or  reservoirs,  are  completed,  together  with  the  approaches, 


tlie  expanse  of  maintaining  and  keeping  them  in  repair  shall  be 
by  persons  using  and  having  a  direct  benefit  from  the  use  of 
the  water  therefrom  and  persons  to  whom  a  greater  supply 
of  water  is  received  by  the  storage  of  water  in  the  aforesaid 
reservoir  or  reservoirs.  [L.  '1)1,  p.  351,  §8. 

[Is  above  section  superseded  by  section  3562?] 

3545.  Penalty  for  damaging  reservoir. — Sec.  381.     Any  per- 
son interfering  with  or  damaging  said  reservoir  or  reservoirs, 
or  parts,  or  appurtenances  thereof,  shall  be  deemed  guilty  of 
i\   misdemeanor  and  upon  conviction  thereof  shall  be  fined  not 
exceeding  one  thousand  (1,000)  dollars  or  by  imprisonment  in 
the  county  jail  not  exceeding  one  year.     [L.  '91,  p.  351,  §9. 

3546.  Reservoir — Saguache  creek. — Sec.  382.     There  is  here- 
by appropriated  out  of  any  money  in  the  state  treasury  belong- 
ing to  the  internal  improvement  income  fund,  and  any  money 
which  may  hereafter  be  credited  to  said  fund,  and  not  otherwise 
appropriated,  the  sum  of  thirty  thousand  dollars  or  so  much 
thereof  as  may  be  necessary,  for  the  construction  of  one  or  more 
reservoirs,  as  Ls  hereinafter  provided,  on  or  near  the  head-waters 
of  Saguache  creek,  in  Saguache  county,  Colorado,  at  some  suit- 
able point  or  points  within   or  near  township  forty-three  (43) 
north  of  range  two  ('2}  east  X.  M.  P.  M.,  or  township  forty-three 
(43)   north  of  range  three   (3)   east  N.  M.  P.  M.  or  both  to  be 
used  for  the  conservative,    storage    and    distribution    of    flood 
waters  and  waters  flowing  in  said  creek  for  the  irrigation  of 
lands  which  are  or  hereafter  can  be  irrigated  by  water  taken 
from  said  Saguache  creek;  Provided,  That  no  part  of  said  appro- 
priation  shall   be   used   for   the  purchase   of   land.      [L.    '1)1,   p. 
:j:u,  §1. 

3547.  Board  of  construction. — Sec.  383,    The  governor,  state 
engineer  and  chairman  of  the  board  of  county  commissioners 
of  Saguache  county  shall  be  and  hereby  are  constituted  a  board 
for  the  purpose  of  constructing  said  reservoir  or  reservoirs,  and 
shall  have  powrer  if  after  the  examination  and  measurements 
made  by  the  state  engineer,  as  hereinafter  provided,  they  shall 
conclude  that   two   reservoirs   could   be   constructed   with   the 
money  hereby  appropriated,  and  that  they  would  more  efficiently 
than  one  subserve  the  objects  hereby  sought  to  be  accomplished, 
to  cause  said  two  reservoirs  to  be  constructed;  Provided,  That 
the  total  cost  of  said  two  reservoirs  shall  not  exceed  the  sum 
of  thirty  thousand  dollars  hereby  appropriated;  And,  provided, 
•further,  That  if  after  proper  examination  and  survey  the  board 
shall  determine  that  it  is  not  practicable  and  feasible  to  con- 
struct any  reservoir  at  the  place  herein  designated,  or  that  the 
same  cannot  be  properly  constructed  with  the  sum  appropriated 


128 

by  this  act,  together  with  such  private  donations  and  subscrip- 
tions as  may  be  tendered  to  the  board,  then  no  portion  of  said 
appropriation  shall  be  expended  except  so  much  as  may  have 
been  necessary  to  defray  the  expenses  of  such  examination  and 
survey  as  may  have  been  required  by  this  act  or  ordered  by  the 
board.  [L.  '91,  p.  355,  §2. 

3548.  Property   of    state — Disposition    of   waters. — Sec.    384. 
The  said  reservoir  or  reservoirs  when  so  constructed,  and  the 
waters  therein  when  so  collected  and  stored,  shall  be  the  prop- 
erty of  the  state,  and  until  otherwise  provided  by  law   shall 
be  under  the  charge,  management  and  control  of  the  said  board 
of  construction,  and  the  said  waters  shall  under  such  rules  and 
regulations  as  the  board  may  prescribe,  be  sold  or  leased,  and 
all  moneys  received  from  such  sale  or  lease,  whether  the  same 
be  sold  along  with  state  or  school  land  or  otherwise,  shall  be 
turned  into  the  state  treasurer  and  by    him    credited    to    the 
internal  improvement  income  fund.     [L.  '91,  p.  356,  §6. 

3549.  Acquired  rights  not  impaired. — Sec.  385.     Nothing  in 
this  act  shall  be  construed  so  as  to  impair  any  rights  acquired 
or  that  may  be  acquired  under  or  by  virtue  of  the  laws  of  Colo- 
rado.    [L.  '91,  p.  356,  §7. 

3550.  Penalty  for  damaging  reservoir. — Sec.  386.     Any  per- 
son wilfully  damaging  any  reservoir  constructed  under  the  pro 
visions  of  this  act,  or  any  of  its  approaches  or  appurtenances 
shall  be  deemed  guilty  of  a  misdemeanor,  and  upon  conviction 
thereof  shall  be  punished  by  a  fine  not  exceeding  one  thousand 
dollars  or  by  imprisonment  in  the  county  jail  for  a  term  not 
exceeding   one  year  or  by  both   such  fine   and  imprisonment. 
[L.  '91,  p.  356,  §8. 

3551.  Eeservoir — Monument  creek. — Sec.  387.    There  is  here- 
by appropriated  out  of  any  money  in  the  state  treasury  belong- 
ing   to    the   internal    improvement    permanent    fund,    and    any 
money  which  may  hereafter  be  credited  to  said  fund  and  not 
otherwise   appropriated,   the   sum   of   thirty   thousand   (30,000) 
dollars,  or  as  much  thereof  as  may  be  necessary,  as  is  herein- 
after provided,  for  the  construction  of  a  reservoir  at  Monument 
creek,  upon  or  adjacent  to  sections  fifteen  and  twenty-two,  town- 
ship eleven,  range  sixty-seven  west,  in  the  county  of  El  Paso, 
to  store  the  water  of  floods  for  the  purpose  of  irrigation  and 
other  beneficial  uses;  Provided,  That  no  part  of  said  appropria- 
tion shall  be  used  for  the  purchase  of  land,  and  that  the  said 
reservoir  shall  not  be  constructed  except  upon  lands  the  title 
to  which  shall  first  be  vested  in  the   state;   And  Provided,,   fur- 
ther, That  all  citizens  of  the  state  shall    have   equal    rights   to 
the  use  and  benefits  of  said  reservoir  when  constructed,  sub- 


129 

ject  only  to  such  reasonable  rules  and  restrictions  as  may  be 
provided  by  law.     [L.  '91,  p.  352,  §1. 

3552.  Property    of    state — Disposition    of    water. — Sec.    388. 
That  the  said  reservoir  and  the  waters  when  so  collected  and 
stored,  shall  be  the  property  of  the  state;  and  the  water  so 
supplied  shall  be  disposed  of  by  sale  to  those  desiring  the  same, 
the  rates  per  cubic  foot  per  second  of  time  therefor  to  be  fixed 
by  the  said  board,  the  payments  thereof  to  be  made  to  said 
board  payable  annually  in  advance  on  or  before  May  1st,  of  each 
year.    The  income  derived  from  the  sale  of  such  water  to  be  paid 
into  the  state  treasury  and  placed  to  the  credit  of  the  internal 
improvement  permanent  fund.     [L.  '91,  p.  353,  §6. 

3553.  Acquired  rights  not  impaired. — Sec.  389.     Nothing  in 
this  act  shall  be  construed  so  as  to  impair  any  rights  acquired, 
01  that  may  be  acquired,  under  the  virtue  of  the  irrigation  laws 
of  the  state  of  Colorado.     [L.  '91,  p.  353,  §7. 

3554.  Penalty  for  interfering  with  or  damaging  reservoir. — 
Sec.  390.     Any  person  interfering  with  or  damaging  said  reser- 
voir or  any  of  its  approaches  or  appurtenances,  shall  be  deemed 
guilty  of  a  misdemeanor,  and  upon  conviction  thereof  shall  be 
fined  not  exceeding  one  thousand  (1,000)  dollars  or  by  imprison- 
ment in   the  county  jail   not  exceeding  one  year.      [L.   '91,   p. 
354,  §8. 

3555.  Reservoir — Chaffee  county. — Sec.  391.    There  is  hereby 
appropriated  out  of  any  money  in  the  state  treasury  belonging 
to  the  internal  improvement  income  fund,  and  any  money  which 
may  hereafter  be  credited  to  said  fund,  and  not  otherwise  ap- 
propriated, the  sum    of    fifteen  thousand  dollars,  or  so  much 
thereof  as  may  be  necessary  for  the  construction  of  one  or  more 
reservoirs,  to  be  used  for  the  conservation,  storage  and  distribu- 
tion of  flood  waters  (and  waters  flowing  in  said  creeks)  and  for 
the  purpose  of  supplying  the  deficiency  existing  at  certain  sea- 
sons of  the  year,  in  the  supply  of  water  flowing  in  the  Cotton- 
wood  creek,  Chalk  creek,  and  the  South  Arkansas  river,  Chaffee 
county,  Colorado,  for  the  irrigation  of  lands  which  are  or  here- 
after can  be  irrigated  by  waters  taken  from  said  creeks;  Pro- 
vided, That  no  part  of  said  appropriation  shall  be  used  for  the 
purchase  of  land.  [L.  '91,  p.  347,  §1. 

3556.  Board  of  construction — Powers     of     board. — Sec.     392. 
The  governor,  state  engineer  and  chairman,  of    the    board  of 
county   commissioners   shall    be   and   hereby  are   constituted   a 
board  for  the  purpose  of  constructing  said  reservoir  or  reser- 
voirs, and  shall  have  power  if.  after  the  examination  and  meas- 
urement made  by  the  state  engineer  as  hereinafter  provided, 


130 

they  shall  conclude  that  two  reservoirs  could  be  constructed  with 
the  money  hereby  appropriated,  and  that  they  would  more  effi- 
ciently than  one  subserve  the  purposes  hereby  sought  to  be  ac- 
complished, to  cause  said  two  reservoirs  to  be  constructed; 
Provided,  That  the  total  cost  of  said  two  reservoirs  shall  not 
exceed  the  sum  of  fifteen  thousand  dollars  hereby  appropriated; 
Andy  provided,  further.  That,  if  after  proper  examination  and 
survey,  the  board  shall  determine  that  it  is  not  practicable  and 
feasible  to  construct  any  reservoir  at  the  place  herein  designated, 
or  that  the  same  cannot  be  properly  constructed  with  the  sum 
appropriated  by  this  act,  together  with  such  private  donations 
and  subscriptions  as  may  be  tendered  to  the  board,  or  in  the 
opinion  of  said  board  the  expenditure  of  the  sum  herein  appro- 
priated in  the  construction  of  said  reservoir  or  reservoirs  shall 
not  be  deemed  expedient,  and  for  the  best  interest  of  the  whole 
people  of  the  state  of  Colorado,  then  no  portion  of  said  appro- 
priation shall  be  expended  except  so  much  as  may  have  been 
necessary  to  defray  the  expenses  of  such  examination  and  sur- 
vey as  may  have  ben  required  by  this  act  or  ordered  by  the 
board,  [t.  '91,  p.  348,  §3. 

3557.  Property  of  state — Management — Sale    of    water — Sec. 
393.    The  said  reservoir  or  reservoirs,  when  so  constructed,  and 
the  waters  therein,  when  so  collected  and  stored,  shall  be  the 
property  of  the  state,  and  all  lands  on  which  shall  be  constructed 
said  reservoir  or  reservoirs  or  the  works  connected  therewith, 
shall  first  be  vested  in  the  state  of  Colorado,  and  until  otherwise 
'provided  by  law  shall  be  under  the  charge,  management  and  con- 
trol of  the  said  board  of  construction,  and  the  said  waters  shall, 
under  such  rules  and  regulations  as  the  board  may  prescribe, 
and  shall  be  sold  or  leased  by  said  board  as  said  board  may  deem 
best,  and  all  moneys  received  from  the  sale  or  lease  of  said  water, 
whether  the  same  shall  be  sold  along  with  lands  belonging  to 
the  state,  or  otherwise,  shall  be  turned  into  the  state  treasurer, 
and  by  him  credited  to  the  internal  improvement  income  fund. 
[L.  >91,  p.  349,  §7. 

3558.  Acquired  rights  not  impaired. — Sec.  394.     Nothing  in 
this  act  shall  be  construed  so  as  to  impair  any  rights  acquired, 
or  that  may  be  acquired,  under  or  by  virtue  of  the  laws  of  Colo- 
rado.    [L.  *»91,  p.  349,  §8. 

3559.  Penalty  for  damaging  reservoir. — Sec.  395.     Any  per- 
son wilfully  damaging  any  reservoir  constructed  under  the  pro- 
visions of  this  act,  or  any  of  its  approaches  or  appurtenances, 
shall  be  deemed  guilty  of  a  misdemeanor,  and  upon  conviction 
thereof  shall  be  punished  by  a  fine  not  exceeding  one  thousand 


131 

dollars,  or  by  imprisonment  in  the  county  jail  for  a  term  not 
exceeding  one  year,  or  by  both  such  fine  and  imprisonment. 
[L.  '91,  p.  349,  §9. 

3560.  Control  of  Boss  lake  reservoir. — Sec.  396.     The  board 
of  county  commissioners  of  Chaffee  county  shall  have  charge  and 
control  of  that  certain  state  reservoir  situated  in  said  county 
and   commonly   known   as  the   Boss   lake  reservoir  and   shall, 
without  expense  to  the  state  of  Colorado,  maintain  and  keep  said 
reservoir  in  good  condition  and  provide  for  the  storage  of  water 
as  contemplated  in  the  act  providing  for  the  construction  of  said 
reservoir  and  also  for  the  distribution  of  said  water  under  the 
direction  of  the  water  commissioner  for  the  district  in  which  said 
reservoir  is  situated,  at  such  times  as  the  scarcity  of  water  in 
the  stream  known  as  the   South  Arkansas  demands  that  the 
waters  in  said  stream  should  be  replenished  for  the  purpose  of 
irrigating  the  lands  under  ditches  now.  or  hereafter  to  be  con- 
structed; Provided,  That  said  waiters  shall  be  disturbed  by  the 
said  water  commissioner  pro  rata  without  reference  to  the  dates 
of  priorities  of  water  rights  and  without  expense  to  the  con- 
sumers thereof;  Provided,  further.  That  the  county  of  Chaffee 
assumes  and  shall  be  held  responsible  for  any  damages  resulting 
from  breakage  of  the  dam  or  water  discharges  therefrom.     [L. 
'97,  p.  119,  §1. 

3561.  Land  board  control  ditches  and  reservoirs. — Sec.     397. 
Until  otherwise  authorized  by  law,  the  board  of  land  commis- 
sioners is  hereby  directed  to  regulate  the  distribution  of  water 
from  state  canals  and  reservoirs  under  such  rules  and  regula- 
tions as  said  board  shall  deem  to  be  for  the  best  interests  of  the 
state.     "And  to  charge  and  collect  rental  for  the  carriage  of 
water  therein."     [L.  '93,  p.  404,  §1. 

[Is  this  section  superseded  by  section  3562?] 
[See  sections  3506  and  3509.] 

3562.  County  control  of  reservoirs.— Sec.  398.    The  board  of 
county  commissioners  of  any  county  wherein  is  situated  any 
state  reservoir,  shall  have  charge  and  control  of  such  reservoir 
and  shall,  without  expense  to  the  state  of  Colorado,  maintain 
and  keep  said  reservoir  in  good  condition  and  provide  for  the 
storage  of  water  as  contemplated  in  the  act  providing  for  the 
construction  of  said  reservoir,  and  also  for  the  distribution  of 
said  water  under  the  direction  of  the  water  commissioner  for 
the  district  in  .which  said  reservoir  is  situated,  at  such  times  as 
the  scarcity  of  water  in  the  stream  which  such  reservoir  is  in- 
tended  to   reinforce   demands  that  the   water  in   said   stream 
should  be  replenished  for  the  purpose  of  irrigating  the  lauds 
under  ditches  now  or  hereafter  to  be  constructed;  Prodded,  That 


132 

said  waters  shall  be  distributed  by  said  water  commissioner 
pro  rata  without  reference  to  priority  of  water  rights  and  with- 
out expense  to  consumers  thereof;  And.  provided,,  also,  That 
the  counties  in  which  said  reservoirs  are  situated  assume  and 
shall  be  held  responsible  for  any  damages  resulting  from  break- 
age of  the  dams  or  water  discharges  therefrom;  And,  provided, 
further,  That  the  provisions  of  this  act  shall  not  apply  to  any 
state  reservoir  constructed  primarily  for  the  purpose  of  irrigat- 
ing state  tands,  but  any  such  reservoir  shall  remain  in  the  con- 
trol of  the  state  board  of  land  commissioners.  [L.  '99,  p.  350,  §1. 


LIENS. 

4051.  (Eev.  Stats.,  1908,  p.  1027.)     Liability  of  co-owners  of 
unincorporated  ditch. — Sec.  39.     All  co-owners  of  unincorporated 
irrigating     ditches     shall     pay     for     the     necessary     cleaning 
and     repairing    of     such     ditches      in      the      proportion      that 
their  respective  interests  bear  to  the  total  expenses  incurred  in 
said  cleaning  and  repairing;  Provided,  that  any  such  co-owner 
may  perform  labor  in  cleaning  and  repairing  such  ditch,  equiva- 
lent in  value  to  his  or  their  share  of  such  expenses  as  aforesaid ; 
Provided,  no  co-owner  shall  be  held  liable  for  cleaning  or  repair- 
ing any  ditch  below  the  point  from  which  he  takes  his  portion 
of  the  water.     [L.  '93,  p.  312,  §1. 

4052.  (Rev.  Stats.,  1908,  p.  1027.)     Request  to  clean  ditch- 
liability  of  co-owners. — Sec.  40.    Upon  the  failure  of  any  one  or 
more  of  several  co-owners  upon  written  request  of  the  owners 
of  one-thm    (1-3)  of  the  carrying  capacity  or  board  of  directors, 
to  assist  in  cleaning  and  repairing  such  ditch,  the  other  co-owner 
or  co-owners  shall  proceed  to  clean  and  repair  the  same,  and 
shall  keep  an  accurate  account  of  the  cost  and  expenses  incurred; 
and  shall,  upon  the  completion  of  such  work,  deliver  to  each  of 
such  delinquent  co-owners,  his  agent,  lessee  or  legal  representa- 
tive an  itemized  statement  of  such  cost  and  expenses.     [L.  '93, 
p.  312,  §2. 

4053.  (Rev.  Stats.,  1908,  p.  1027.)     Lien  of  co-owner  against 
delinquent. — Sec.  41.     The  co-owner  or  co-owners    of    any    such 
ditch  who  shall  clean  and  repair  the  same,  as  specified  in  section 
two  (2)  of  this  act,  shall  have  a  lien  upon  the  interest  in  such 
ditch  owned  by  such  delinquent  co-owner  for  his  proportion  of 
such  cost  and  expenses.     [L.  '93,  p.  312,  §3. 


MEASUREMENT   OF   WATER, 


7026.  (Rev.  Stats.,  1908,  p.  1631.)  Water.*  *  *  Every 
inch  shall  be  considered  equal  to  an  inch  square  orifice 
under  a  five-inch  pressure,  and  a  five-inch  pressure  shall 
be  from  the  top  of  the  orifice  of  the  box  put  into  the 
banks  of  the  ditch,  to  the  surface  of  water;  said  boxes, 
or  any  slot  or  aperture  through  which  such  water  may  be 
measured,  shall  in  all  cases  be  six  inches  perpendicular,  in- 
side measurement,  except  boxes  delivering  less  than  twelve 
inches,  which  may  be  square,  with  or  without  slides;  all  slides 
for  the  same  shall  move  horizontally  and  not  otherwise;  and 
said  box  put  into  the  banks  of  ditch  shall  have  a  descending 
grade  from  the  water  in  ditch  of  not  less  than  one-eighth  of  an 
inch  to  the  foot.  [G.-S.,  §3472;  G.  L.,  §2779;  L.  '74,  p.  308,  §1, 
amending  R.  S.,  p.  638,  §3. 


134 


SUPREME  COURT  OF  THE  UNITED   STATES. 


No.  3,  Original.— October  Term,  1906. 


The  State  of  Kansas,  Complainant, 

vs. 

The  State  of  Colorado  et  al.,  Defendants,  The 
United  States  of  America,  Intervenor. 

In  Equity. 
[May  13,  1907.] 

On  May  20,  1901,  pursuant  to  a  resolution  passed  by  the 
legislature  of  Kansas  (Laws  Kansas,  1901,  chap.  425),  and  upon 
leave  obtained,  the  State  of  Kansas  filed  its  bill  in  equity  in  this 
court  against  the  state  of  Colorado.  To  this  bill  the  defendant 
demurred.  After  argument  on  the  demurrer  this  court  held  that 
the  case  ought  not  to  be  disposed  of  on  the  mere  averments  of 
the  bill,  and,  therefore,  overruled  the  demurrer  without  prejudice 
to  any  question  defendant  might  present.  Leave  was  also  given 
to  answer.  185  U.  S.,  125.  In  delivering  the  opinion  of  the  court 
the  chief  justice  disclosed  in  the  following  words 'the  general 
character  of  the  controversy,  and  the  conclusions  arrived  at: 
(P.  145.) 

"The  gravamen  of  the  bill  is  that  the  state  of  Colorado,  act- 
ing directly  herself  as  well  as  through  private  persons  thereto 
licensed,  is  depriving  and  threatening  to  deprive  the  state  of 
Kansas  and  its  inhabitants  of  all  the  water  heretofore  accus- 
tomed to  flow  in  the  Arkansas  river  through  its  channel  on  the 
surface,  and  through  a  subterranean  course  across  the  state  of 
Kansas;  that  this  is  threatened  not  only  by  the  impounding  and 
the  use  of  the  water  at  the  river's  source,  but  as  it  flows  after 
reaching  the  river.  Injury,  it  is  averred,  is  being  and  would  be, 
thereby  inflicted  on  the  state  of  Kansas  as  an  individual  owner, 
and  on  all  the  inhabitants  of  the  state,  and  especially  on  the  in- 


135 

habitants  of  that  part  of  the  state  lying  in  the  Arkansas  valley. 
The  injury  is  asserted  to  be  threatened,  and  as  being  wrought, 
in  respect  of  lands  located  on  the  banks  of  the  river;  lands  lying 
on  the  line  of  the  subterranean  flow;  and  lands  lying  some  dis- 
tance from  the  river,  either  above  or  below  ground,  but  depend- 
ent on  the  river  for  a  supply  of  water.  And  it  is  insisted  that 
(Colorado  in  doing  this  is  violating  the  fundamental  principle 
that  one  must  use  his  own  so  as  not  to  destroy  the  legal  rights 
of  another. 

"The  state  of  Kansas  appeals  to  the  rule  of  the  common  law 
that  owners  of  lands  on  the  banks  of  a  river  are  entitled  to  the 
continual  flow  of  the  stream,  and  while  she  concedes  that  this 
rule  has  been  modified  in  the  western  states  so  that  flowing 
water  may  be  appropriated  to  mining  purposes  and  for  the  recla- 
mation of  arid  lands,  and  the  doctrine  of  prior  appropriation 
obtains,  yet  she  says  that  that  modification  has  not  gone  so  far 
as  to  justify  the  destruction  of  the  rights  of  other  states  and 
their  inhabitants  altogether;  and  that  the  acts  of  Congress  of 
ISUf;  and  subsequently,  while  recognizing  the  prior  appropria- 
tion of  water  as  in  contravention  of  the  common  law  rule  as  to 
a  continuous  flow,  have  not  attempted  to  recognize  it  as  rightful 
to  that  extent.  In  other  words,  Kansas  contends  that  Colorado 
can  not  absolutely  destroy  her  rights,  and  seeks  some  mode  of 
accommodation  as  between  them,  while  she  further  insists  that 
she  occupies,  for  reasons  given,  the  position  of  a  prior  appro- 
priator  herself,  if  put  to  that  contention  as  between  her  and 
Colorado. 

"Sitting,  as  it  were,  as  an  international  as* well  as  a  domestic 
tribunal,  we  apply  federal  law,  state  law,  and  international  law, 
as  the  exigencies  of  the  particular  case  may  demand,  and  we  are 
unwilling,  in  this  case,  to  proceed  on  the  mere  technical  admis- 
sions made  by  the  demurrer.  Nor  do  we  regard  it  as  necessary, 
whatever  imperfections  a  close  analysis  of  the  pending  bill  may 
disclose,  to  compel  its  amendment  at  this  stage  of  the  litigation. 
We  think  proof  should  be  made  as  to  whether  Colorado  is  herself 
actually  threatening  to  wholly  exhaust  the  flow  of  the  Arkansas 
river  in  Kansas;  whether  what  is  described  in  the  bill  as  the 
'underflow'  is  a  subterranean  stream  flowing  in  a  known  and  de- 
fined channel,  and  not  merely  water  percolating  through  the 
strata  below;  whether  certain  persons,  firms  and  corporations 
in  Colorado  must  be  made  parties  hereto;  what  lands  in  Kansas 
are  actually  situated  on  the  banks  of  the  river,  and  what,  either 
in  Colorado  or  Kansas,  are  absolutely  dependent  on  water  there- 
from ;  the  extent  of  the  water-shed  or  the  drainage"  area  of  the 
Arkansas  river;  the  possibilities  of  the  maintenance  of  a  sus- 


136 

tained  flow  through  the  control  of  flood  waters;  in  short,  the  cir- 
cumstances, a  variation  in  which  might  induce  the  court  to 
either  grant,  modify,  or  deny  the  relief  sought  or  any  part 
thereof." 

On  August  17,  1903,  Kansas  filed  an  amended  bill,  naming 
as  defendants  Colorado  and  quite  a  number  of  corporations,  who 
were  charged  to  be  engaged  in  depleting  the  flow  of  water  in 
the  Arkansas  river.  Colorado  and  several  of  the  corporations 
answered.  For  reasons  which  will  be  apparent  from  the  opinion 
the  defenses  of  these  corporations  will  not  be  considered  apart 
from  those  of  Colorado.  On  March  21,  1904,  the  United  States, 
upon  leave,  filed  its  petition  of  intervention.  The  issue  between 
these  several  parties  having  been  perfected  by  replications,  a 
commissioner  was  appointed  to  take  evidence,  and  after  that  had 
been  taken  and  abstracts  prepared  counsel  for  the  respective 
parties  were  heard  in  argument,  and  upon  the  pleadings  and  tes- 
timony the  case  was  submitted. 

In  order  that  the  issue  between  the  three  principal  parties, 
Kansas,  Colorado  and  the  United  States,  may  be  fully  disclosed 
— although  by  so  doing  wre  prolong  considerably  this  opinion— 
we  quote  abstracts  of  the  pleadings  and  statements  thereof  made 
by  the  respective  counsel.  Counsel  for  Kansas  say: 

"The  bill  of  complaint  alleges  that  the  state  of  Kansas  was 
admitted  into  the  Union  on  January  29,  1861,  that  the  state  of 
Colorado  was  admitted  on  August  1,  1876,  and  that  the  other 
defendants  are  corporations  organized,  chartered  and  doing  busi- 
.  ness  in  the  state  of  Colorado;  that  the  Arkansas  river  rises  in 
the  Rocky  mountains,  in  the  state  of  Colorado,  and,  flowing  in  a 
southeasterly  direction  for  a  distance  of  about  280  miles,  crosses 
the  boundary  into  the  state  of  Kansas;  that  the  river  then  flows 
in  an  easterly  and  southeasterly  direction  through  the  state  of 
Kansas  for  a  distance  of  about  300  miles,  then  through  Okla- 
homa; Indian  Territory  and  Arkansas,  on  its  way  to  the  sea. 
Through  the  state  of  Kansas  the  Arkansas  valley  is  a  level 
plain  but  a  few  feet  above  the  normal  level  of  the  river,  and  is 
from  two  to  twenty-five  miles  in  width.  Back  to  the  foot  hills 
on  either  side  there  are  bottom  lands  which  are  saturated  and 
sub-irrigated  by  the  underflow  from  the  river,  and  are  fertile 
and  productive  almost  beyond  comparison.  The  Arkansas  river 
is  a  meandered  stream  through  the  state  of  Kansas,  and  under 
the  laws  and  departmental  rules  and  regulations  of  the  United 
States  it  is  a  navigable  river  through  the  state  of  Kansas,  and 
was,  in  fact,  navigable  and  navigated  from  the  city  of  Wichita 
south  to  its  mouth;  and  that  the  complainant  is  the  owner  of 
the  bed  of  the  stream  between  the  meandered  lines,  in  trust  for 


137 

the  people  of  the  state;  that  the  complainant  is  the  owner  of 
two  tracts  of  land  bordering  upon  the  river,  one  at  Hutchinson 
and  one  at  Dodge  City,  upon  which  state  institutions  are  main- 
tained— one  as  a  reform  school  and  the  other  as  a  soldiers'  home. 
That  when  the  state  of  Kansas  was  admitted  into  the  Union  it 
became  the  owner  for  school  purposes  of  sections  16  and  33  of 
each  congressional  township,  of  which  the  complainant  still 
owns  many  thousand  acres,  much  of  which  borders  on  the  Ar- 
kansas river.  That  by  act  of  Congress  of  March  3,  1863,  the  com- 
plainant became  the  owner  of  each  odd-numbered  section  of  land 
in  the  Arkansas  valley,  and  has  since  conveyed  the  whole  of 
this  land  for  the  purposes  specified.  That  by  the  year  1868  the 
land  in  the  Arkansas  valley  began  to  be  taken  by  actual  settlers, 
and  by  the  year  1875  practically  all  the  bottom  lands  in  the  east 
or  lower  half  of  the  valley  were  entered  and  settled,  and  title 
obtained  from  the  United  States  or  the  state  of  Kansas;  and  by 
the  year  1882  the  west  or  upper  half  of  the  valley  was  so  entered 
and  settled  and  like  titles  obtained.  By  the  year  1873  a  railroad 
was  built  through  the  entire  length  of  the  valley,  and  immedi- 
ately after  their  settlement  these  bottom  lands  were  extensively 
cultivated,  large  crops  of  agricultural  products  were  raised, 
towns  and  cities  sprang  up,  population  rapidly  increased,  and 
by  the  year  1883  practically  all  the  bottom  lands  of  the  Arkansas 
valley  wrere  in  a  state  of  successful  and  prosperous  cultivation; 
that  the  waters  of  the  Arkansas  river  furnished  the  foundation 
for  this  prosperity.  These  waters  furnished  a  wholesome  and 
ample  supply  for  domestic  purposes,  for  the  watering  of  stock, 
for  power  for  operating  mills  and  factories,  for  saturating  and 
sub-irrigating  the  bottom  lands  back  to  the  uplands  on  either 
side  of  the  river,  so  that  crops  thereon  were  not  only  bounteous 
but  practically  certain,  and  in  the  western  portion  of  the  valley 
these  waters  were  appropriated  and  used  for  surface  irrigation, 
to  supplant  the  scanty  rainfall  in  that  region.  That  by  reason 
of  these  uses  of  the  wraters  of  the  Arkansas  river,  and  the  almost 
unvarying  water  level  beneath  these  bottom  lands  being  near 
the  surface,  the  lands  in  the  Arkansas  valley  in  the  state  of 
Kansas  w<ere  of  great  and  permanent  value  to  the  owrners  and 
settlers  thereon,  and  those  upon  the  tax  rolls  of  the  state  of 
Kansas  yielded  a  large  and  increasing  revenue  to  the  complain- 
ant for  state  purposes. 

"That  after  the  lands  in  the  Arkansas  valley  had  been  set- 
tled and  raised  to  a  high  state  of  cultivation,  all  the  bottoiw 
lands  in  the  valley  being  riparian  lands  and  directly  affected  by 
the  presence  and  flow  of  the  river,  and  after  parts  of  the  flow  of 
the  river  had  been  used  for  manufacturing  and  milling  purposes, 


138 

and  after  the  riparian  lands  had  been  largely  and  extensively 
irrigated  in  the  valley  of  the  river  in  the  western  portion  of 
Kansas,  and  after  portions  of  the  land  so  belonging  to  the  com- 
plainant had  been  sold  and  conveyed,  the  state  of  Colorado  and 
other  defendants  began  systematically  appropriating  and  divert- 
ing the  waters  of  the  Arkansas  river,  in  the  state  of  Colorado, 
between  Canon  City  and  the  Kansas  state  line,  for  the  purpose 
of  irrigating  dry,  barren,  arid,  non-riparian  and  non-saturated 
lands  lying  on  either  side  of  the  river,  and  often  many  miles 
therefrom,  -and  by  the  year  1891  all  the  natural  and  normal 
waters  and  a  large  portion  of  the  flood  waters  of  the  Arkansas 
river  were  so  appropriated  and  diverted  and  actually  applied  to 
these  dry,  barren,  arid,  non-riparian  and  non-saturated  lands  in 
the  state  of  Colorado,  said  diversions  increasing  from  year  to 
year,  as  their  means  of  diversion  became  more  complete  and 
perfect,  so  the  average  flow  of  the  river  was  greatly  and  per- 
manently diminished  and  the  normal  flow  of  the  river,  exclusive 
of  floods,  was  wholly  and  permanently  destroyed,  the  naviga- 
bility of  the  river  where  navigable  before  had  been  ruined,  the 
power  for  manufacturing  purposes  greatly  diminished,  the  sur- 
face of  the  underflow  beneath  the  bottom  lands  has  been  lowered 
about  five  feet,  and  the  water  for  the  irrigation  ditches  in  the 
western  part  of  Kansas  has  been  entirely  cut  off.  The  loss  sus- 
tained by  the  complainant  and  its  citizens  has  been  great  and 
incalculable.  The  benefits  of  river  navigation  are  gone;  the 
cheap  water  power  has  been  replaced  by  the  costly  steam  power; 
the  productiveness  and  value  of  the  bottom  lands  have  been 
greatly  diminished;  the  irrigation  ditches  are  left  dry  and  the 
lands  uncultivated,  and  the  revenues  of  the  state  of  Kansas  and 
its  municipalities  have  been  materially  decreased.  Against  this 
loss  and  injury  the  complainant  prays  the  assistance  of  this 
court.'' 

In  the  brief  of  counsel  for  Colorado  it  is  said: 

"The  contention  of  the  defendant,  State  of  Colorado,  as  to 
the  facts,  may  be  concisely  stated  as  follows:  The  Arkansas 
river,  popularly  so  called,  is  substantially  two  rivers,  one  a  per- 
ennial stream  rising  in  the  mountains  of  Colorado  and  flowing 
down  to  the  plains,  and  this  Colorado  Arkansas,  when  the  river 
was  permitted  to  run  as  it  was  accustomed  to  run,  prior  to  the 
period  of  irrigation,  poured  into  the  sands  of  western  Kansas, 
and  at  times  of  low  water  the  river  as  a  stream  entirely  disap- 
peared. Its  waters  were  to  some  extent  evaporated,  and  as  to 
the  residue,  were  absorbed  and  swallowed  up  in  the  sands.  So 
that  from  the  vicinity  of  the  state  line  between  Kansas  and 
Colorado  on  eastwardly,  as  far,  at  least,  as  Great  Bend,  if  not 


139 

farther,  at  such  times  of  low  water  there  was  no  flowing  Ar- 
kansas river.  Farther  east,  however,  a  new  river  arose,  even  at 
such  times  of  low  water,  and  partly  from  springs,  partly  from 
the  drainage  of  the  water  table  of  the  country  supplied  by  rain- 
fall, and  partly  from  the  surface  drainage  of  an  extensive  ter- 
ritory, this  river  gradually  again  became  a  perennial  stream, 
so  that  south  of  Wichita,  and  from  there  on  to  the 'mouth  of 
the  river,  the  Kansas  Arkansas,  as  a  new  and  separate  stream, 
had  a  constant  flowr.  Such,  as  the  river  was  accustomed  to  flow, 
was  the  Arkansas  of  the  period  prior  to  irrigation.  It  was  a 
'broken  river.'  It  is  true  that  at  all  times  in  early  years,  and 
now.  the  Arkansas  river  at  times  of  flood,  or  of  what  might  be 
called  high  wrater,  has  a  continuous  flow  from  its  source  to  its 
mouth,  but  a  flow,  even  in  times  of  flood  or  high  water,  which 
diminishes  through  the  sandy  waste  east  of  the  Colorado  state 
line  above  described,  so  that  oftentimes  even  a  flood  in  Colo- 
rado would  be  completely  lost  before  it  had  passed  over  this  arid 
stretch  of  sandy  channel,  and  high  water  would  always  be  di- 
minished in  flow  through  the  same  stretch  of  country.  This 
river  is  as  if  it  were  a  current  of  water  passing  over  a  sieve;  if 
the  current  be  slow  and  the  volume  not  excessive,  all  of  it  sinks 
through  the  sieve  and  none  passes  on  beyond;  when  the  current 
is  rapid  and  the  volume  is  large,  still  a  large  amount  sinks  in 
the  sieve-,  and  the  residue  passes  on  beyond. 

"Now,  the  irrigators  of  Colorado  have  confined  their  actions 
to  the  Colorado  Arkansas  above  described.  They  have  taken 
the  wTaters  of  the  perennial  stream  before  it  reaches  this  sieve, 
through  which  it  wasted;  they  have  lifted  that  stream  out  of  the 
sandy  channel  in  which  it  had  flowed  and  applied  it  to  beneficial 
uses  upon  the  land;  carried  the  body  of  it  along  at  a  higher  level 
than  where  it  was  accustomed  to  run,  and  they  finally  restore  it, 
practically  undiminished  in  volume,  so  far  as  regards  practical 
use,  at  points  in  the  ancient  channel  farther  east  than  the  river 
at  low  water  was  accustomed  to  flow  before  the  period  of  irri- 
gation. The  effect  of  the  diversion  of  this  water  in  Colorado, 
the  carrying  of  it  forward  on  a  higher  level,  the  return  of  waters, 
partly  through  seepage  and  partly  through  direct  delivery  at 
waste  gates,  and  the  effect  of  this  process  in  extending  eastward 
the  perennial  flow,  will  be  fully  discussed  in  the  course  of  the 
argument  to  follow.  It  is  sufficient  in  this  preliminary  state- 
ment to  say  that  it  is  admitted  by  the  complainant  that  in  the 
course  of  a  twelvemonth  there  is  a  vast  amount  of  high  and 
flood  wraters  of  the  Arkansas  that  are  never  captured  by  man, 
that  are  of  no  use,  but  are  rather  of  injury  to  Kansas  riparian 
proprietors,  and,  so  far  as  any  beneficial  use  is  concerned,  are  ab- 


140 

solutely  wasted  and  lost.  Kansas  does  not  claim  that  she  has 
not  abundance  of  water  in  times  of  flood  or  in  times  of  high 
water;  her  complaint  is  based  upon  the  alleged  fact  that  she 
does  not  have  what  she  was  accustomed  to  have  in  periods  of  low 
water,  whereas,  in  fact,  as  contended  by  the  state  of  Colorado, 
the  diversion  of  water  in  Colorado  into  ditches  and  reservoirs, 
continuing,  as  it  does,  throughout  the  year,  in  times  of  flood  and 
in  times  of  high  water,  has  the  effect,  through  seepage  and  re- 
turn waters,  to  give  perennial  vitality  to  portions  of  this  stream 
during  what  would  otherwise  be  periods  of  depression  or  sus- 
pension of  flow/' 

The  substance  of  the  petition  in  intervention  is  thus  stated 
by  counsel  for  the  government: 

"The  first  paragraph  of  the  said  petition  describes  the  Ar- 
kansas river  from  its  source  to  its  mouth,  and  alleges  that  it  is 
not  navigable  in  the  state  of  Colorado  and  Kansas  nor  the  terri- 
tory of  Oklahoma,  but  is  navigable  in  the  state  of  Arkansas  and 
the  Indian  territory. 

"In  the  second  paragraph  it  is  alleged  that  the  lands  located 
within  the  watershed  of  the  river  west  of  the  ninety -ninth  de- 
gree of  longitude  are  arid  lands. 

"The  third  paragraph  alleges  that  within  said  watershed 
there  are  1,000,000  acres  of  public  lands  that  are  uninhabitable 
and  unsalable. 

"The  fourth  paragraph  alleges  that  said  lands  can  only  be 
made  habitable,  productive  and  salable  by  impounding  and 
storing  flood  and  other  waters  in  said  watershed,  to  the  end  that 
the  said  waters  may  be  used  to  reclaim  said  land. 

"The  fifth  paragraph  alleges  that  there  is  not  sufficient 
moisture  from  rainfall  to  render  the  soil  capable  of  producing 
crops  in  paying  quantities  in  the  watershed  so  described,  and 
that  they  can  only  be  made  to  produce  crops  by  irrigation;  that 
the  common-law  doctrine  of  riparian  rights  is  not  applicable  to 
conditions  in  the  arid  region  and  has  been  abolished  by  statute 
and  by  usage  and  custom ;  that  there  has  been  established  in  its 
stead  in  said  region  a  doctrine  to  the  effect  that  the  waters  of 
natural  streams  and  the  flood  and  other  waters  may  be  im- 
pounded, appropriated,  diverted,  and  used  for  the  purpose  of  re- 
claiming and  irrigating  the  arid  land  therein,  and  that  the  prior 
appropriation  of  such  waters  for  such  purpose  gives  a  prior  and 
superior  right  to  the  wTater  of  the  stream. 

"The  sixth  paragraph  alleges  that  legislation  of  Congress, 
decisions  of  courts,  and  acts  of  the  executive  department  have 
sanctioned  and  approved  the  use  of  water  for  irrigation  purposes 
in  the  arid  region  and  that  he  who  is  prior  in  time  is  prior  in 


141 

right,  and  that  it  is  recognized  that  the  common-law  doctrine 
of  riparian  rights  is  not  applicable  to  the  public  land  owned  by 
the  United  States  in  the  arid  region. 

"The  seventh  paragraph  alleges  that  in  accordance  with 
and  in  reliance  upon  the  doctrine  of  the  use  of  water  for  irriga- 
tion purposes  the  inhabitants  of  the  arid  portion  of  the  United 
States  have  appropriated  and  used  the  waters  of  streams  therein 
to  reclaim  and  make  productive  and  profitable  about  10,000,000 
acres  of  land,  which  now  support  a  population  of  many  millions, 
and  that  the  inhabitants  of  Colorado  and  Kansas  within  the 
watershed  of  the  Arkansas  river  have  by  irrigation  from  said 
river  made  productive  and  profitable  about  200,000  acres  of 
land,  which  provide  homes  for  and  support  a  population  of  many 
thousands. 

"The  eighth  paragraph  alleges  that  the  common-law  doc- 
trine of  riparian  rights  is  not  applicable  to  riparian  lands  within 
the  arid  region,  and  that  only  by  the  use  of  waters  of  natural 
streams  and  flood  waters  for  irrigation  and  other  beneficial  pur- 
poses can  the  lands  in  the  arid  region  be  made  productive,  and 
only  by  such  use  can  additional  areas  be  reclaimed  and  rendered 
productive  and  salable. 

"The  ninth  paragraph  recites  the  passage  of  the  so-called 
reclamation  act  of  June  17,  1902. 

"The  tenth  paragraph  alleges  that  about  60,000,000  acres  of 
land  belonging  to  the  United  States  within  the  arid  region  can 
be  reclaimed  under  the  provisions  of  the  so-called  reclamation 
act. 

"The  eleventh  paragraph  alleges  that  the  amount  of  land 
that  can  be  so  reclaimed  will  support  a  population  of  many  mil- 
lions. 

"The  twelfth  paragraph  alleges  that  under  the  operation  of 
the  said  reclamation  act  100,000  acres  of  public  land  can  be  re- 
claimed within  the  watershed  of  the  Arkansas  river  west  of  the 
ninety-ninth  degree  west. 

"The  thirteenth  paragraph  alleges  that  the  lands  when  so 
reclaimed  will  support  a  population  of  not  less  than  50,000. 

"The  fourteenth  paragraph  alleges  that  under  the  operation 
of  the  so-called  reclamation  act  about  $1,000,000  has  been  ex- 
pended in  exploring,  procuring  and  setting  apart  sites  upon 
which  reservoirs  and  dams  contemplated  by  the  act  can  be  con- 
structed and  maintained;  that  contracts  have  been  let  for  the 
construction  of  reservoirs,  which,  when  completed,  will  cost 
over  two  millions  and  will  have  a  storage  capacity  to  reclaim 
500,000  acres  of  arid  land,  which  land  when  reclaimed  will  sus- 
tain a  population  of  not  less  than  250,000;  that  plans  are  con- 


142 

templated  for  the  expenditure  of  $20,000.000  under  said  act,  to 
irrigate  about  1,000,000  acres  of  arid  public  lands. 

"The  fifteenth  paragraph  recites  that  there  are  $16,000,000 
available  under  the  so-called  reclamation  act. 

"The  sixteenth  paragraph  sets  forth  the  contention  of  Kan- 
sas as  seen  in  its  amended  bill  of  complaint,  viz.,  that  it  is  en- 
titled to  have  the  waters  of  the  Arkansas  river,  which  rise  in 
Colorado,  flowr  uninterrupted  and  unimpeded  into  Kansas. 

"The  seventeenth  paragraph  sets  forth  the  contention  of 
Colorado  in  respect  to  its  claim-  of  ownership,  viz.,  that  under 
the  provisions  of  its  constitution  it  is  the  owner  of  all  waters 
within  that  state. 

"The  eighteenth  paragraph  is  as  follows: 

"  'That  neither  the  contention  of  the  state  of  Colorado  nor 
the  contention  of  the  state  of  Kansas  is  correct;  nor  does  either 
contention  accord  with  the  doctrine  prevailing  in  the  arid  re- 
gion in  respect  to  the  waters  of  natural  streams  and  of  flood 
and  other  waters.  That  either  contention,  if  sustained,  would 
defeat  the  object,  intent  and  purpose  of  the  reclamation  act, 
prevent  the  settlement  and  sale  of  the  arid  lands  belonging  to 
the  United  States,  and  especially  those  within  the  watershed  of 
the  Arkansas  river  west  of  the  ninety-ninth  degree  west  longi- 
tude, and  would  otherwise  work  great  damage  to  the  interests  of 
the  United  States.'  " 

Mr.  Justice  Brewer  delivered  the  opinion  of  the  court. 

While  we  said  in  overruling  the  demurrer  that  "this  court, 
speaking  broadly,  has  jurisdiction,"  we  contemplated  further 
consideration  of  both  the  fact  and  the  extent  of  our  jurisdiction, 
to  be  fully  determined  after  the  facts  were  presented.  We  there- 
fore commence  with  this  inquiry.  And  first  of  our  jurisdiction 
of  the  controversy  between  Kansas  and  Colorado. 

This  suit  involves  no  question  of  boundary  or  of  the  limits 
of  territorial  jurisdiction.  Other  and  incorporeal  rights  are 
claimed  by  the  respective  litigants.  Controversies  between  the 
states  are  becoming  frequent,  and  in  the  rapidly  changing  condi- 
tions of  life  and  business  are  likely  to  become  still  more  so.  In- 
volving as  they  do  the  rights  of  political  communities,  which  in 
many  respects  are  sovereign  and  independent,  they  present  not 
infrequently  questions  of  far-reaching  import  and  of  exceeding 
difficulty. 

It  is  well,  therefore,  to  consider  the  foundations  of  our  juris- 
diction over  controversies  between  states.  It  is  no  longer  open 
to  question  that  by  the  Constitution  a  nation  was  brought  into 
being,  and  that  that  instrument  was  not  merely  operative  to 
establish  a  closer  union  or  league  of  states.  Whatever  powers 


143 

of  government  were  granted  to  the  nation  or  reserved  to  the 
states  (and  for  the  description  and  limitation  of  those  powers 
we  must  always  accept  the  Constitution  as  alone  and  absolutely 
controlling),  there  was  created  a  nation  to  be  knowTn  as  the 
United  States  of  America,  and  as  such  then  assumed  its  place 
among  the  nations  of  the  w^orld. 

The  first  resolution  passed  by  the  convention  that  framed 
the  Constitution,  sitting  as  a  committee  of  the  whole,  wras  "Re- 
solved, That  it  is  the  opinion  of  this  committee  that  a  national 
government  ought  to  be  established,  consisting  of  a  supreme 
legislative,  judiciary,  and  executive/'  1  Eliot's  Debates,  p.  151. 

In  McCulloch  vs.  State  of  Maryland,  A  Wheat.,  316,  405, 
Chief  Justice  Marshall  said:  • 

"The  government  of  the  Union,  then  (whatever  may  be  the 
influence  of  this  fact  on  the  case),  is,  emphatically  and  truly,  a 
government  of  the  people.  In  form  and  in  substance  it  emanates 
from  them.  Its  powers  are  granted  by  them,  and  are  to  be  exer- 
cised directly  on  them,  and  for  their  benefit." 

See,  also.  Marten  vs.  Hunter's  Lessee,  1  Wheat.,  304,  324, 
opinion  by  Mr.  Justice  Story. 

In  Dred  Scott  vs.  Sandford,  19  How.,  393,  441,  Chief  Justice 
Taney  observed: 

"The  new  government  was  not  a  mere  change  in  a  dynasty, 
or  in  a  form  of  government,  leaving  the  nation  or  sovereignty 
the  same,  and  clothed  with  all  the  rights,  and  bound  by  all  the 
obligations  of  the  preceding  one.  But,  when  the  present  United 
States  came  into  existence  under  the  new  government,  it  was  a 
newT  political  body,  a  new  nation,  then  for  the  first  time  taking 
its  place  in  the  family  of  nations." 

And  in  Miller  on  the  Constitution  of  the  United  States, 
p.  83,  referring  to  the  adoption  of  the  Constitution,  that  learned 
jurist  said:  "It  was  then  that  a  nation  was  born." 

In  the  Constitution  are  provisions  in  separate  articles  for 
the  three  great  departments  of  government — legislative,  execu- 
tive and  judicial.  But  there  is  this  significant  difference  in  the 
grants  of  powers  to  these  departments:  The  first  article,  treat- 
ing of  legislative  powrers,  does  not  make  a  general  grant  of  leg- 
islative power.  It  reads:  "Article  I,  Section  1.  All  legislative 
powers  herein  granted  shall  be  vested  in  a  Congress,"  etc.;  and 
then  in  article  8  mentions  and  defines  the  legislative  powers  that 
are  granted.  By  reason  of  the  fact  that  there  is  no  general 
grant  of  legislative  power  it  has  become  an  accepted  constitu- 
tional rule  that  this  is  a  government  of  enumerated  powers. 

In  McCulloch  vs.  State  of  Maryland,  supra,  p.  405,  Chief 
Justice  Marshall  said: 


144 

"This  government  is  acknowledged  by  all  to  be  one  of  enum- 
erated powers.  The  principle,  that  it  can  exercise  only  the  pow- 
ers granted  to  it,  would  seem  too  apparent  to  have  required  to 
be  enforced  by  all  those  arguments  which  its  enlightened 
friends,  W7hile  it  was  depending  before  the  people,  found  it  neces- 
sary to  urge.  That  principle  is  now  universally  admitted." 

On  the  other  hand,  in  article  III,  which  treats  of  the  judi- 
cial department — >and  this  is  important  for  our  present  consid- 
eration— we  find  that  section  1  reads  that  "the  judicial  power 
of  the  United  States  shall  be  vested  in  one  Supreme  Court,  and 
in  such  inferior  courts  as  the  Congress  may  from  time  to  time 
ordain  and  establish."  By  this  is  granted  the  entire  judicial 
power  of  the  nation.  Section  2,. which  provides  that  "the  judi- 
cial power  shall  extend  to  all  cases  in  law  and  equity,  arising 
under  this  Constitution,  the  laws  of  the  United  States,"  etc.,  is 
not  a  limitation  nor  an  enumeration.  It  is  a  definite  declara- 
tion, a  provision  that  the  judicial  powers  shall  extend  to — that 
is,  shall  include — the  several  matters  particularly  mentioned, 
leaving  unrestricted  the  general  grant  of  the  entire  judicial 
power.  There  may  be,  of  course,  limitations  on  that  grant  of 
power,  but  if  there  are  any  they  must  be  expressed,  for  other- 
wise the  general  grant  would  vest  in  the  courts  all  the  judicial 
power  which  the  new  nation  was  capable  of  exercising.  Con- 
struing this  article  in  the  early  case  of  Chisholm  vs.  Georgia,  2 
Dall.,  419,  the  court  held  that  the  judicial  power  of  the  Supreme 
Court  extended  to  a  suit  brought  against  a  state  by  a  citizen  of 
another  state.  In  announcing  his  opinion  in  the  case,  Mr.  Jus- 
tice Wilson  said  (p.  453): 

"This  question,  important  in  itself,  will  depend  on  others 
more  importrant  still;  and  may,  perhaps,  be  ultimately  resolved 
into  one  no  less  radical  than  this — Do  the  people  of  the  United 
States  form  a  nation?" 

In  reference  to  this  question  attention  may  however  prop- 
erly be  called  to  Hans  vs.  Louisiana,  134  U.  S.,  1. 

The  decision  in  Chisholm  vs.  Georgia  led  to  the  adoption 
of  the  eleventh  amendment  to  the  constitution,  withdrawing 
from  the  judicial  power  of  the  United  States  every  suit  in 
law  or  equity  commenced  or  prosecuted  against  one  of  the 
United  States  by  citizens  of  another  state  or  citizens  or  sub- 
jects of  a  foreign  state.  This  amendment  refers  only  to  suits 
and  actions  by  individuals,  leaving  undisfurbed  the  jurisdic- 
tion over  suits  or  actions  by  one  state  against  another.  As  said 
by  Chief  Justice  Marshall  in  Cohens  vs.  Virginia,  6  Wheat.  264, 
407:  "The  amendment,  therefore,  extended  to  suits  com- 
menced or  prosecuted  by  individuals,  but  not  to  those  brought 


145 

by  states."  See,  also,  South  Dakota  vs.  North  Carolina,  192  U. 
S.,  286. 

Speaking  generally,  it  may  be  observed  that  the  judicial 
power  of  a  nation  extends  to  all  controversies  justiciable  in 
their  nature,  the  parties  to  which  or  the  property  involved  in 
which  may  be  reached  by  judicial  process,  and  when  the  judicial 
power  of  the  United  States  was  vested  in  the  Supreme  and  other 
courts  all  the  judicial  power  which  the  nation  was  capable  of 
exercising  was  vested  in  those  tribunals,  and  unless  there  be 
some  limitations  expressed  in  the  Constitution  it  must  be  held 
to  embrace  all  controversies  of  a  justiciable  nature  arising 
within  the  territorial  limits  of  the  nation,  no  matter  who  may 
be  the  parties  thereto.  This  general  truth  is  not  inconsistent 
with  the  decisions  that  no  suit  or  action  can  be  maintained 
against  the  nation  in  any  of  its  courts  without  its  consent,  for 
they  only  recognize  the  obvious  truth  that  a  nation  is  not  with- 
out its  consent  subject  to  the  controlling  action  of  any  of  its 
instrumentalities  or  agencies.  The  creature  cannot  rule  the 
creator.  Kawananakoa  vs.  Polyblank,  Trustee,  Etc.,  205  IT.  S. 
Nor  is  it  inconsistent  with  the  ruling  in  Wisconsin  vs.  Pelican 
Insurance  Company,  127  IT.  S.  265,  that  an  original  action  can- 
not be  maintained  in  this  court  by  one  state  to  enforce  its 
penal  laws  against  a  citizen  of  another  state.  That  was  no  de- 
nial of  the  jurisdiction  of  tho  court,  but  a  decision  upon  the 
merits  of  the  claim  of  the  state. 

These  considerations  lead  to  the  propositions  that  when 
a  legislative  power  is  claimed  for  the  national  government  the 
question  is  whether  that  power  is  one  of  those  granted  by  the 
constitution,  either  in  terms  or  by  necessary  implication, 
whereas  in  respect  to  judicial  functions  the  question  is  whether 
there  be  any  limitations  expressed  in  the  constitution  on  the 
general  grant  of  national  power. 

We  may  also  notice  a  matter  in  respect  thereto  referred 
to  at  length  in  Missouri  vs.  Illinois  &  Chicago  District,  180 
U.  S.,  208,  220.  The  ninth  article  of  the  Articles  of  Confedera- 
tion provided  that  "the  United  States  in  Congress  assembled 
shall  also  be  the  last  resort  on  appeal  in  all  disputes  and  dif- 
ferences now  subsisting  or  that  hereafter  may  arise  between  two 
or  more  states  concerning  boundary,  jurisdiction  or  any  other 
cause  whatever."  In  the  early  drafts  of  the  constitution  pro- 
vision was  made  giving  to  the  Supreme  Court  "jurisdiction  of 
controversies  between  two  or  more  states,  except  such  as 
shall  regard  territory  or  jurisdiction,"  and  also  that  the  Sen- 
ate should  have  exclusive  power  to  regulate  the  manner  of  de- 
ciding the  disputes  and  controversies  between  the  states  re- 


146 

specting  jurisdiction  or  territory.  As  finally  adopted,  the  con- 
stitution omits  all  provisions  for  the  Senate  taking  cognizance 
Of  disputes  between  the  states  and  leaves  out  the  exception 
referred  to  in  the  jurisdiction  granted  to  the  Supreme  Court. 
That  carries  with  it  a  very  direct  recognition  of  the  fact  that 
to  the  Supreme  Court  is  granted  jurisdiction  of  all  controver- 
sies between  the  states  which  are  justiciable  in"  their  nature. 
"All  the  states  have  transferred  the  decision  of  their  contro- 
versies to  this  court;  each  had  a  right  to  demand  of  it  the  exer- 
cise of  the  power  which  they  had  made  judicial  by  the  Con- 
federation of  1781  and  1788;  that  we  should  do  that  which 
neither  states  nor  congress  could  do,  settle  the  controversies 
between  them."  Rhode  Island  vs.  Massachusetts,  12  Pet.,  (5.17, 
743. 

Under  the  same  general  grant  of  judicial  power  jurisdic- 
tion over  suits  brought  by  the  United  States  has  been  sustained. 
United  States  vs.  Texas,  143  U.  S.,  621;  162  IT.  S.,  1;  United 
States  vs.  Michigan,  190  U.  S.,  379. 

The  exemption  of  the  United  States  to  suit  in  one  of  its 
own  courts  without  its  consent  has  been  repeatedly  recognized. 
Kansas  vs.  United  States,  204  U.  S.,  331,  341,  and  cases  cited. 

Turning  now  to  the  controversy  as  here  presented,  it  is 
whether  Kansas  has  a  right  to  the  continuous  flow  of  the  waters 
of  the  Arkansas  river,  as  that  flow  existed  before  any  human 
interference  therewith,  or  Colorado  the  right  to  appropriate 
the  waters  of  that  stream  so  as  to  prevent  that  continuous  flow, 
or  that  the  amount  of  the  flow  is  subject  to  the  superior  au- 
thority and  supervisory  control  of  the  United  States.  While 
several  of  the  defendant  corporations  have  answered,  it  is  un- 
necessary to  specially  consider  their  defenses,  for  if  the  case 
against  Colorado  fails  it  fails  also  as  against  them.  Colorado 
denies  that  it  is  any  substantial  manner  diminishing  the  flow 
of  the  Arkansas  river  into  Kansas.  If  that  be  true  then  it  is 
in  no  way  infringing  upon  the  rights  of  Kansas.  If  it  is  dim- 
inishing that  flow  has  it  an  absolute  right  to  determine  for 
itself  the  extent  to  which  it  will  diminish  it,  even  to  the  en- 
tire appropriation  of  the  water?  And  if  it  has  not  that  absolute 
right  is  the  amount  of  appropriation  that  it  is  now  making  such 
an  infringement  upon  the  rights  of  Kansas  as  to  call  for  ju- 
dicial interference?  Is  the  question  one  solely  between  the 
states  or  is  the  matter  subject  to  national  legislative  regula- 
tion, and,  if  the  latter,  to  what  extent  has  that  regulation  been 
carried?  Clearly  this  controversy  is  one  of  a  justiciable  na- 
ture. The  right  to  the  flow  of  a  stream  was  one  recognized  at 


147 

common  law,  for  a  trespass  upon  which  a  cause  of  action  ex- 
isted. 

The  primary  question  is.  of  course,  of  national  control. 
For,  if  the  nation  has  a  right  to  regulate  the  flow  of  the  waters, 
we  must  inquire  what  it  lias  done  in  the  way  of  regulation. 
If  it  has  done  nothing  the  further  question  will  then  arise, 
what  are  the  respective  rights  of  the  two  states  in  the  absence 
of  national  regulation?  Congress  has,  by  virtue  of  the  grant 
to  it  of  power  to  regulate  commerce  "among  the  several  states," 
extensive  control  over  the  highways,  natural  or  artificial,  upon 
which  such  commerce  may  be  carried.  It  may  prevent  or  re- 
move obstructions  in  the  natural  waterways  and  preserve  the 
navigability  of  those  ways.  In  United  States  vs.  Rio  Grande 
Irrigation  Company,  174  U.  S.,  <>!)<).  in  which  was  considered  the 
validity  of  the  appropriation  of  the  water  of  a  stream  by  virtue 
of  local  legislation,  so  far  as  such  appropriation  affected  the 
navigability  of  the  stream,  we  said  (p.  70.')): 

"Although  this  power  of  changing  the*  common  law  rule 
as  to  streams  within  its  dominion  undoubtedly  belongs  to  each 
state,  yet  two  limitations  must  be  recognized:  First,  that  in 
the  absence  of  specific  authority  from  Congress  a  state  can  not 
by  its  legislation  destroy  the  right  of  the  United  States,  as  the 
owner  of  lands  bordering  on  a  stream,  to  the  continued  flow  of 
its  waters;  so  far,  at  least,  as  may  be  necessary  for  the  beneficial 
uses  of  the  government  property.  Second,  that  it  is  limited  by 
the  superior  power  of  the  general  government  to  secure  the  un- 
interrupted navigability  of  all  navigable  streams  within  the 
limits  of  the  United  States.  In  other  words,  the  jurisdiction 
of  the  general  government  over  interstate  commerce  and  its  nat- 
ural highways  vests  in  that  government  the  right  to  take. all 
needed  measures  to  preserve  the  navigability  of  the  navigable 
watercourses  of  the  country,  even  against  any  state  action." 

It  follows  from  this  that  if  in  the  present  case  the  national 
government  was  asserting,  as  against  either  Kansas  or  Colorado, 
that  the  appropriation  for  the  purposes  of  irrigation  of  the  wa- 
ters of  the  Arkansas  was  affecting  the  navigability  of  the  stream, 
it  would  become  our  duty  to  determine  the  truth  of  the  charge. 
But  the  government  makes  no  such  contention.  On  the  con- 
trary, it  distinctly  asserts  that  the  Arkansas  river  is  not  now 
and  never  was  practically  navigable  beyond  Fort  Gibson  in  the 
Indian  territory,  and  no  when*  claims  that  any  appropriation 
of  the  waters  by  Kansas  or  Colorado  affects  its  navigability.- 

It  rests  its  petition  of  intervention  upon  its  alleged  duty  of 
legislating  for  the  reclamation  of  arid  lands;  alleges  that  in  or 
near  the  Arkansas  river,  as  it  runs  through  Kansas  and  Colorado, 


148 

are  large  tracts  of  those  lands;  that  the  national  government  is 
itself  the  owner  of  many  thousands  of  acres ;  that  it  has  the  right 
to  make  such  legislative  provision  as  in  its  judgment  is  needful 
for  the  reclamation  of  all  these  arid  lands  and  for  that  purpose 
to  appropriate  the  accessible  waters. 

In  support  of  the  main  proposition  it  is  stated  in  the  brief 
of  its  counsel: 

"That  the  doctrine  of  riparian  rights  is  inapplicable  to  con- 
ditions prevailing  in  the  arid  region ;  that  such  doctrine,  if  appli- 
cable in  said  region,  would  prevent  the  sale,  reclamation  and 
cultivation  of  the  public  arid  lands,  and  defeat  the  policy  of  the 
government  in  respect  thereto ;  that  the  doctrine  which  is  appli- 
cable to  conditions  in  said  arid  region,  and  which  prevails  therein, 
is  that  the  waters  of  natural  streams  may  be  used  to  irrigate  and 
cultivate  arid  lands,  whether  riparian  or  non-riparian,  and  that 
the  priority  of  appropriation  of  such  waters  and  the  application 
of  the  same  for  beneficial  purposes  establishes  a  prior  and  su- 
perior right." 

In  other  words,  the  determination  of  the  rights  of  the  two 
states  inter  sese  in  regard  to  the  flow  of  waters  in  the  Arkansas 
river  is  subordinate  to  a  superior  right  on  the  part  of  the  national 
government  to  control  the  whole  system  of  the  reclamation  of 
arid  lands.  That  involves  the  question  whether  the  reclamation 
of  arid  lands  is  one  of  the  powers  granted  to  the  general  govern- 
ment. As  heretofore  stated,  the  constant  declaration  of  this 
court  from  the  beginning  is  that  this  government  is  one  of  enume- 
rated powers.  "The  government,  then,  of  the  United  States  can 
claim  no  powers  which  are  not  granted  to  it  by  the  constitution, 
and  the  powers  actually  granted  must  be  such  as  are  expressly 
given  or  given  by  necessary  implication."  (Story,  J.,  in  Martin 
vs.  Hunter's  Lessee,  I  Wheat.,  304,  326.)  "The  government  of  the 
United  States  is  one  of  delegated,  limited  and  enumerated  pow- 
ers." (United  States  vs.  Harris,  106  U.  S.,  629,  635.) 

Turning  to  the  enumeration  of  the  powers  granted  to  Con- 
gress by  the  eighth  section  of  the  first  article  of  the  constitution, 
it  is  enough  to  say  that  no  one  of  them  by  any  implication  refers 
to  the  reclamation  of  arid  lands.  The  last  paragraph  of  the 
section  which  authorizes  Congress  to  make  all  laws  which  shall 
be  necessary  and  proper  for  carrying  into  execution  the  fore- 
going powers,  and  all  other  powers  vested  by  this  constitution 
in  the  government  of  the  United  States,  or  in  any  department  or 
officer  thereof,  is  not  the  delegation  of  a  new  and  independent 
power,  but  simply  provision  for  making  effective  the  powers 
theretofore  mentioned.  The  construction  of  that  paragraph  was 
precisely  stated  by  Chief  Justice  Marshall  in  these  words:  "We 


149 

think  the  sound  construction  of  the  constitution  must  allow  to 
the  national  legislature  that  discretion,  with  respect  to  the  means 
by  which  the  powers  it  confers  are  to  be  carried  into  execution, 
which  will  enable  that  bod}'  to  perform  the  high  duties  assigned 
to  it,  in  the  manner  most  beneficial  to  the  people.  Let  the  end 
be  legitimate,  let  it  be  within  the  scope  of  the  constitution,  and 
all  means  which  are  appropriate,  which  are  plainly  adapted  to 
that  end,  which  are  not  prohibited,  but  consist  with  the  letter 
and  spirit  of  the  constitution,  are  constitutional" — a  statement 
which  has  become  the  settled  rule  of  construction.  From  this  and 
other  declarations  it  is  clear  that  the  constitution  is  not  to  be 
construed  technically  and  narrowly,  as  an  indictment,  or  even 
as  a  grant  presumably  against  the  interest  of  the  grantor,  and 
passing  only  that  which  is  clearly  included  within  its  language, 
but  as  creating  a  system  of  government  whose  provisions  are 

6—5870  w,lr,ffi 

designed  to  make  effective  and  operative  all  the  governmental 
powers  granted.  Yet  while  so  construed  it  still  is  true  that  no 
independent  and  unmentioned  powrer  passes  to  the  national  gov- 
ernment or  can  rightfully  be  exercised  by  the  Congress. 

We  must  look  beyond  section  8  for  congressional  authority 
over  arid  lands,  and  it  is  said  to  be  found  in  the  second  para- 
graph of  section  3  of  article  four,  reading:  "The  Congress  shall 
have  power  to  dispose  of  and  make  all  needful  rules  and  regu- 
lations respecting  the  territory  or  other  property  belonging  to 
the  United  States;  and  nothing  in  this  constitution  shall  be  so 
construed  as  to  prejudice  any  claims  of  the  United  States,  or  of 
any  particular  state." 

The  full  scope  of  this  paragraph  has  never  been  definitely 
settled.  Primarily,  at  least,  it  is  a  grant  of  power  to  the  United 
States  of  control  over  its  property.  That  is  implied  by  the  words 
''territory  or  other  property."  It  is  true  it  has  been  referred  to 
in  some  decisions  as  granting  political  and  legislative  control 
over  the  territories  as  distinguished  from  the  states  of  the  Union. 
It  is  unnecessary  in  the  present  case  to  consider  whether  the  lan- 
guage justifies  this  construction.  Certainly  we  have  no  disposi- 
tion to  limit  or  qualify  the  expressions  which  have  heretofore 
fallen  from  this  court  in  respect  thereto.  But  clearly  it  does 
not  grant  to  Congress  any  legislative  control  over  the  states,  and 
must,  so  far  as  they  are  concerned,  be  limited  to  authority  over 
the  property  belonging  to  the  United  States  within  their  limits. 
Appreciating  the  force  of  this,  counsel  for  the  government  relies 
upon  "the  doctrine  of  sovereign  'and  inherent  power,"  adding 
"I  am  aware  that  in  advancing  this  doctrine  I  seem  to  challenge 
great  decisions  of  the  court,  and  I  speak  with  deference."  His 


150 

argument  runs  substantially  along  this  line :  All  legislative  power 
must  be  vested  in  either  the  state  or  the  national  government; 
no  legislative  powers  belong  to  a  state  government  other  than 
those  which  affect  solely  the  internal  affairs  of  that  state;  conse- 
quently all  powers  which  are  national  in  their  scope  must  be 
found  vested  in  the  Congress  of  the  United  States.  But  the 
proposition  that  there  are  legislative  powers  affecting  the  nation 
as  a  whole  which  belong  to,  although  not  expressed  in  the  grant 
of  powers,  is  in  direct  conflict  with  the  doctrine  that  this  is  a 
government  of  enumerated  powers.  That  this  is  such  a  govern- 
ment clearly  appears  from  the  constitution,  independently  of  the 
amendments,  for  otherwise  there  would  be  an  instrument  granting 
certain  specified  things  made  operative  to  grant  other  and  dis- 
tinct things.  This  natural  construction  of  the  original  body  of 
the  constitution  is  made  absolutely  certain  by  the  tenth  amend- 
ment. This  amendment,  which  was  seemingly  adopted  with  pre- 
science of  just  such  contention  as  the  present,  disclosed  the  wide- 
spread fear  that  the  national  government  might,  under  the  pres- 
sure of  a  supposed  general  welfare,  attempt  to  exercise  powers 
which  had  not  been  granted.  With  equal  determination  the 
framers  intended  that  no  such  assumption  should  ever  find  justi- 
fication in  the  organic  act,  and  that  if  in  the  future  further 
powers  seemed  necessary  they  should  be  granted  by  the  people 
in  the  manner  they  had  provided  for  amending  that  act.  It  reads  : 
"The  powers  not  delegated  to  the  United  States  by  the  consti- 
tution, nor  prohibited  by  it  to  the  states,  are  reserved  to  the 
states  respectively,  or  to  the  people."  The  argument  of  counsel 
ignores  the  principal  factor  in  this  article,  to  wit,  "the  people." 
Its  principal  purpose  was  not  the  distribution  of  power  between 
the  United  States  and  the  -states,  but  a  reservation  to  the  people 
of  all  powers  not  granted.  The  preamble  of  the  constitution 
declares  who  framed  it,  "we  the  people  of  the  United  States," 
not  the  people  of  one  state,  but  the  people  of  all  the  states,  and 
article  10  reserves  to  the  people  of  all  the  states  the  powers  not 
delegated  to  the  United  States.  The  powers  affecting  the  internal 
affairs  of  the  states  not  granted  tp  the  United  States  by  the  con- 
stitution, nor  prohibited  by  it  to  the  states,  are  reserved  to  the 
states  respectively,  and  all  powers  of  a  national  character  which 
are  not  delegated  to  the  national  government  by  the  constitution 
are  reserved  to  the  people  of  the  United  States.  The  people  who 
adopted  the  constitution  knew  that  in  the  nature  of  things  they 
could  not  foresee  all  the  questions  which  might  arise  in  the  future, 
all  the  circumstances  which  might  call  for  the  exercise  of  further 
national  powers  than  those  granted  to  the  United  States,  and 
after  making  provision  for  an  amendment  to  the  constitution  by 


151 

which  any  needed  additional  powers  would  be  granted,  they  re- 
served to  themselves  all  powers  not  so  delegated.  This  article 
10  is  not  to  be  shorn  of  its  meaning  by  any  narrow  or  technical 
construction,  but  is  to  be  considered  fairly  and  liberally  so  as  to 
give  effect  to  its  scope  and  meaning.  As  we  said,  construing  an 
express  limitation  on  the  powers  of  Congress,  in  Fairbanks  vs. 
United  States,  181  U.  S.,  283,  288: 

"We  are  not  here  confronted  with  a  question  of  the  extent 
of  the  powers  of  Congress,  but  one  of  the  limitations  imposed  by 
the  constitution  on  its  action,  and  it  seems  to  us  clear  that  the 
same  rule  and  spirit  of  construction  must  also  be  recognized.  If 
powers  granted  are  to  be  taken  as  broadly  granted  and  as  carry- 
ing with  them  authority  to  pass  those  acts  which  may  be  reason- 
ably necessary  to  carry  them  into  full  execution ;  in  other  words, 
if  the  constitution  in  its  grant  of  powers  is  to  be  so  construed  that 
Congress  shall  be  able  to  carry  into  full  effect  the  powers  granted, 
it  is  equally  imperative  that  where  prohibition  or  limitation  is 
placed  upon  the  power  of  Congress,  that  prohibition  or  limitation 
should  be  enforced  in  its  spirit  and  to  its  entirety.  It  would  be  a 
strange  rule  of  construction  that  language  granting  powers  is  to 
be  liberally  construed,  and  that  language  of  restriction  is  to  be 
narrowly  and  technically  construed.  Especially  is  this  true  when 
in  respect  to  grants  of  powers  there  is  as  heretofore  noticed  the 
help  found  in  the  last  clause  of  the  eighth  section,  and  no  such 
helping  clause  in  respect  to  prohibitions  and  limitations.  The 
true  spirit  of  constitutional  interpretation  in  both  directions  is 
to  give  full,  liberal  construction  to  the  language,  aiming  ever  to 
show  fidelity  to  the  spirit  and  purpose." 

This  very  matter  of  the  reclamation  of  arid  lands  illustrates 
this :  At  the  time  of  the  adoption  of  the  constitution  within  the 
known  and  conceded  limits  of  the  United  States  there  were  no 
large  tracts  of  arid  land,  and  nothing  which  called  for  any  fur- 
ther action  than  that  which  might  be  taken  by  the  legislature  of 
the  state,  in  which  any  particular  tract  of  such  land  was  to  be 
found,  and  the  constitution,  therefore,  makes  no  provision  for  a 
national  control  of  the  arid  regions  or  their  reclamation.  But, 
as  our  national  territory  has  been  enlarged,  we  have  within  our 
borders  extensive  tracts  of  arid  lands  which  ought  to  be  reclaimed, 
and  it  may  well  be  that  no  power  is  adequate  for  their  reclamation 
other  than  that  of  the  national  government.  But  if  no  such 
power  has  been  granted,  none  can  be  exercised. 

It  does  not  follow  from  this  that  the  national  government  is 
entirely  powerless  in  respect  to  this  matter.  These  arid  lands 
are  largely  within  the  territories,  and  over  them  by  virtue  of  the 
second  paragraph  of  section  three  of  article  four  heretofore 
quoted,  or  by  virtue  of  the  power  vested  in  the  national  govern- 


152 

ment  to  acquire  territory  by  treaties ;  Congress  has  full  power  of 
legislation,  subject  to  no  restrictions  other  than  those  expressly 
named  in  the  constitution,  and,  therefore,  it  may  legislate  in  re- 
spect to  all  arid  lands  within  their  limits.  As  to  those  lands 
within  the  limits  of  the  states,  at  least  of  the  western  states,  the 
national  government  is  the  most  considerable  owner  and  has 
power  to  dispose  of  and  make  all  needful  rules  and  regulations 
respecting  its  property.  We  do  not  mean  that  its  legislation  can 
override  state  laws  in  respect  to  the  general  subject  of  reclama- 
tion. While  arid  lands  are  to  be  found,  mainly  if  not  only  in  the 
western  and  newer  states,  yet  the  powers  of  the  national  govern- 
ment within  the  limits  of  those  states  are  the  same  (no  greater 
and  no  less)  than  those  within  the  limits  of  the  original  thirteen, 
and  it  would  be  strange  if,  in  the  absence  of  a  definite  grant  of 
power,  the  national  government  could  enter  the  territory  of  the 
states  along  the  Atlantic  and  legislate  in  respect  to  improving  by 
irrigation  or  otherwise  the  lands  within  their  borders.  Nor  do 
we  understand  that  hitherto  Congress  has  acted  in  disregard  to 
this  limitation.  As  said  by  Mr.  Justice  White,  delivering  the 
opinion  of  the  court  in  Gutierres  vs.  Albuquerque  Land  Company, 
188  U.  S.,  545,  554,  after  referring  to  previous  legislation : 

"It  may  be  observed  that  the  purport  of  the  previous  acts  is 
reflexively  illustrated  by  the  act  of  June  17,  1902,  32  Stat,  388. 
That  act  appropriated  the  receipts  from  the  sale  and  disposal  of 
public  lands  in  certain  states  and  territories  to  the  construction 
of  irrigation  works  for  the  reclamation  of  arid  lands.  The  eighth 
section  of  the  act  is  as  follows : 

"  'Sec.  8.  That  nothing  in  this  act  shall  be  construed  as 
affecting  or  intending  to  affect  or  to  in  any  way  interfere  with 
the  lawrs  of  any  state  or  territory  relating  to  the  control,  appro- 
priation, use  or  distribution  of  water  used  in  irrigation,  or  any 
vested  right  acquired  thereunder,  and  the  secretary  of  the  in- 
terior, in  carrying  out  the  provisions  of  this  act,  shall  proceed 
in  conformity  with  such  laws,  and  nothing  herein  shall  in  any 
way  affect  any  right  of  any  state  or  of  the  federal  government 
or  of  any  land  owner,  appropriator  or  user  of  water  in,  to  or 
from  any  interstate  stream  or  the  waters  thereof;  Provided,  That 
the  right  to  the  use  of  the  water  acquired  under  the  provisions 
of  this  act  shall  be  appurtenant  to  the  land  irrigated,  and  bene- 
ficial use  shall  be  the  basis,  the  measure  and  the  limit  of  the 
right.'  " 

But  it  is  useless  to  pursue  the  inquiry  further  in  this  direc- 
tion. It  is  enough  for  the  purposes  of  this  case  that  each  state 
has  full  jurisdiction  over  the  lands  within  its  borders,  including 
the  beds  of  streams  and  other  waters.  Martin  vs.  Waddell,  16 


153 

Pet.,  367;  Pollard  vs.  Hawaii.  3  How.,  212;  Goodtitle  vs.  Kibbe, 
9  How.,  471;  Barney  vs.  Keokuk,  94  U.  S.,  324;  St.  Louis  vs. 
Myers,  113  U.  S.,  566;  Packer  vs.  Bird,  137  U.  S.,  661;  Hardin  vs. 
Jordan,  140  U.  S.,  371;  Kaiikauna  Water  Power  Company  vs. 
Green  Bay  &  Mississippi  Canal  Company,  142  U.  S.,  254 ;  Shively 
vs.  Bowlby,  152  U.  S.,  1;  Water  Power  Company  vs.  Water  Com- 
missioners, 168  U.  S.,  349 ;  Kean  vs.  Calumet  Canal  Company,  190 
U.  S.,  452.  In  Barney  vs.  Keoknk,  supra,  Mr.  Justice  Bradley 
said  (page  338): 

"And  since  this  court,  in  the  case  of  The  Genesee  Chief,  12 
Id.,  443,  has  declared  that  the  Great  Lakes  and  other  navigable 
waters  of  the  country,  above  as  well  as  below  the  flow  of  the 
tide,  are,  in  the  strictest  sense,  entitled  to  the  denomination  of 
navigable  waters,  and  amenable  to  the  admiralty  jurisdiction, 
there  seems  to  be  no  sound  reasons  for  adhering  to  the  old  rule 
as  to  the  proprietorship  of  the  beds  and  shores  of  such  waters. 
It  properly  belongs  to  the  states  by  their  inherent  sovereignty, 
and  the  United  States  has  wisely  abstained  from  extending  (if 
it  could  extend)  its  survey  and  grants  beyond  the  limits  of  high 
water." 

In  Hardin  vs.  Jordan,  supra,  the  same  justice,  after  stating 
that  the  title  to  the  shore  and  lands  under  water  is  in  the  state, 
added  (pp.  381,  382): 

"Such  title  being  in  the  state,  the  lands  are  subject  to  state 
regulation  and  control,  under  the  condition,  however,  of  not  in- 
terfering wTith  the  regulations  wrhich  may  be  made  by  Congress 
with  regard  to  public  navigation  and  commerce.  *  *  *  Some- 
times large  areas  so  reclaimed  are  occupied  by  cities,  and  are 
put  to  other  public  or  privdte  uses,  state  control  and  ownership 
therein  being  supreme,  subject  only  to  the  paramount  authority 
of  Congress  in  making  regulations  of  commerce,  and  in  subject- 
ing the  lands  to  the  necessities  and  uses  of  commerce.  *  * 
This  right  of  the  states  to  regulate  and  control  the  shores  of 
tide  waters,  and  the  land  under  them,  is  the  same  as  that  which 
is  exercised  by  the  crown  in  England.  In  this  country  the  same 
rule  has  been  extended  to  our  great  navigable  lakes,  which  are 
treated  as  inland  seas;  and  also,  in  some  of  the  states,  to  navi- 
gable rivers,  as  the  Mississippi,  the  Missouri,  the  Ohio,  and,  in 
Pennsylvania,  to  all  the  permanent  rivers  of  the  state;  but  it 
depends  on  the  law  of  each  state  to  what  waters  and  to  what  ex- 
tent this  prerogative  of  the  state  over  the  lands  under  water 
shall  be  exercised." 

It  may  determine  for  itself  whether  the  common  law  rule 
in  respect  to  riparian  rights  or  that  doctrine  which  obtains  in 
the  arid  regions  of  the  West  of  the  appropriation  of  waters  for 


154 

the  purposes  of  irrigation  shall  control.  Congress  can  not  en- 
force either  rule  upon  any  state.  It  is  undoubtedly  true  that 
the  early  settlers  brought  to  this  country  the  common  law  of 
England,  and  that  that  common  law  throws  light  on  the  mean- 
ing and  scope  of  the  constitution  of  the  United  States,  and  is 
also  in  many  states  expressly  recognized  as  of  controlling  force 
in  the  absence  of  express  statute.  As  said  by  Mr.  Justice  Gray 
in  United  States  vs.  Wong  Kim  Ark,  169  U.  S.,  649,  654: 

"In  this,  as  in  other  respects,  it  must  be  interpreted  in  the 
light  of  the  common  law,  the  principles  and  history  of  which 
were  familiarly  known  to  the  framers  of  the  constitution.  Minor 
vs.  Happersett,  21  Wall.,  162;  Ex  parte  Wilson,  114  U.  S.,  417, 
422;  Boyd  vs.  United  States,  116  U.  S.,  616,  624,  625;  Smith  vs! 
Alabama,  124  U.  S.,  465.  The  language  of  the  constitution,  as 
has  been  well  said,  could  not  be  understood  without  reference 
to  the  common  law.  1  Kent  Com.,  336;  Bradley,  J.,  in  Moore  vs. 
United  States,  91  U.  S.,  270,  274." 

In  the  argument  on  the  demurrer  counsel  for  plaintiff  en- 
deavored to  showr  that  Congress  had  expressly  imposed  the  com- 
mon law  on  all  this  territory  prior  to  its  formation  into  states. 
See,  also,  the  opinion  of  the  Supreme  Court  of  Kansas  in  Clark 
vs.  Allaman,  71  Kan.,  206.  But  when  the  states  of  Kansas  and 
Colorado  were  admitted  into  the  Union  they  were  admitted  with 
the  full  powers  of  local  sovereignty  which  belonged  to  other 
states,  Pollard  vs.  Hagan,  supra;  Shively  vs.  Bowlby,  supra; 
Hardin  vs.  Shedd,  190  U.  S.,  508,  519,  and  Colorado  by  its  legis- 
lation has  recognized  the  right  of  appropriating  the  flowing 
waters  to  the  purposes  of  irrigation.  Now  the  question  arises 
between  two  states,  one  recognizing  generally  the  common  law 
rule  of  riparian  rights  and  the  other  prescribing  the  doctrine  of 
the  public  ownership  of  flowing  water.  Neither  state  can  legis- 
late for  or  impose  its  own  policy  upon  the  other.  A  stream 
flows  through  the  two  and  a  controversy  is  presented  as  to  the 
flow  of  that  stream.  It  does  not  follow,  however,  that  because 
Congress  can  not  determine  the  rule  which  shall  control  between 
the  two  states  or  because  neither  state  can  enforce  its  own 
policy  upon  the  other,  that  the  controversy  ceases  to  be  one  of 
a  justiciable  nature,  or  that  there  is  no  power  which  can  take 
cognizance  of  the  controversy  and  determine  the  relative  rights 
of  the  two  states.  Indeed,  the  disagreement,  coupled  with  its 
effect  upon  a  stream  passing  through  the  two  states,  makes  a 
matter  for  investigation  and  determination  by  this  court.  It  has 
been  said  that  there  is  no  common  law  of  the  United  States  as 
distinguished  from  the  common  law  of  the  several  states.  This 
contention  was  made  in  Western  Union  Telegraph  Company  vs. 


155 

Call  Publishing  Company,  181  IT.  S.,  02,  in  which  it  was  as- 
serted that,  as  Congress  having  sole  jurisdiction  over  interstate 
commerce  had  prescribed  no.  rates  for  interstate  telegraph  com- 
munications, there  was  no  limit  on  the  power  of  a  telegraph 
company  in  respect  thereto.  After  referring  to  the  general  con- 
tention, we  said  (pp.  101,  102): 

"Properly  understood,  no  exceptions  can  be  taken  to  declar- 
ations of  this  kind.  There  is  no  body  of  federal  common  law  sep- 
arate and  distinct  from  the  common  law  existing  in  the  several 
states  in  the  sense  that  there  is  a  body  of  statute  law  enacted 
by  Congress  separate  and  distinct  from  the  body  of  statute  law 
enacted  by  the  several  states.  But  it  is  an  entirely  different  thing 
to  hold  that  there  is  no  common  law  in  force  generally  throughout 
the  United  States,  and  that  the  countless  multitude  of  interstate 
commercial  transactions  are  subject  to  no  rules  and  burdened  by 
no  restrictions  other  than  those  expressed  in  the  statutes  of 
Congress.  *  Can  it  be  that  the  great  multitude  of  inter- 

state commercial  transactions  are  freed  from  the  burdens  cre- 
ated by  the  common  law,,  as  so  defined,  and  are  subject  to  no  rule 
except  that  to  be  found  in  the  statutes  of  Congress?  We  are 
clearly  of  opinion  that  this  can  not  be  so,  and  that  the  principles 
of  the  common  law  are  operative  upon  all  interstate  commercial 
transactions,  except  so  far  as  they  are  modified  by  congres- 
sional enactment." 

What  is  the  common  law?    Kent  says  (vol.  1,  p.  471): 

"The  common  law  includes  those  principles,  usages  and 
rules  of  action  applicable  to  the  government  and  security  of 
persons  and  property,  which  do  not  rest  for  their  authority  upon 
any  express  and  positive  declaration  of  the  will  of  the  legis- 
lature." 

As  it  does  not  rest  on  any  statute  or  other  written  declara- 
tion of  the  sovereign,  there  must,  as  to  .each  principle  thereof, 
be  a  first  statement.  Those  statements  are  found  in  the  deci- 
sions of  courts,  and  the  first  statement  presents  the  principle  as 
certainly  as  the  last.  Multiplication  of  declarations  merely 
adds  certainty.  For,  after  all,  the  common  law  is  but  the  accu- 
mulated expressions  of  the  various  judicial  tribunals  in  their 
efforts  to  ascertain  what  is  right  and  just  between  individuals 
in  respect  to  private  disputes.  As  Congress  can  not  make  com- 
pacts between  the  states,  as  it  can  not,  in  respect  to  certain  mat- 
ters, by  legislation  compel  their  separate  action,  disputes  be- 
tween them  must  be  settled  either  by  force  or  else  by  appeal  to 
tribunals  empowered  to  determine  the  right  and  wrong  thereof. 
Force  under  our  system  of  government  is  eliminated.  The  clear 
language  of  the  constitution  vests  in  this  court  the  power  to 


156 

settle  those  disputes.  We  have  exercised  that  power  in  a  variety 
of  instances,  determining  in  the  several  instances  the  justice  of 
the  dispute.  Nor  is  our  jurisdiction  ousted,  even  if,  because 
Kansas  and  Colorado  are  states  sovereign  and  independent  in 
local  matters,  the  relations  between  them  depend  in  any  respect 
upon  principles  of  international  law.  International  law  is  no 
alien  in  this  tribunal.  In  -The  Paquete  Habana,  175  U.  S.,  677, 
700,  Mr.  Justice  Gray  declared: 

"International  law  is  part  of  our  law,  and  must  be  ascer- 
tained and  administered  by  the  courts  of  justice  of  appropriate 
jurisdiction,  as  often  as  questions  of  right  depending  upon  it 
are  duly  presented  for  their  determination." 

And  in  delivering  the  opinion  in  the  demurrer  in  this  case 
Chief  Justice  Fuller  said  (p.  146) : 

"Sitting,  as  it  were,  as  an  international,  as  well  as  a  do- 
mestic tribunal,  we  apply  federal  lawT,  state  law,  and  interna- 
tional law,  as  the  exigencies  of  the  particular  case  may  de- 
mand." 

One  cardinal  rule,  underlying  all  the  relations  of  the  states 
to  each  other,  is  that  of  equality  of  right.  Each  state  stands  on 
the  same  level  with  all  the  rest.  It  can  impose  its  own  legisla- 
tion on  no  one  of  the  others,  and  is  bound  to  yield  its  owrh  viewrs 
to  none.  Yet,  whenever,  as  in  the  case  of  Missouri  vs.  Illinois, 
supra,  the  action  of  one  state  reaches  through  the  agency  of 
natural  laws  into  the  territory  of  another  state,  the  question  of 
the  extent  and  the  limitations  of  the  rights  of  the  two  states  be- 
comes a  matter  of  justiciable  dispute  betwreen  them,  and  this 
court  is  called  upon  to  settle  that  dispute  in  such  a  way  as  will 
recognize  the  equal  rights  of  both  and  at  the  same  time  establish 
justice  between  them.  In  other  words,  through  these  successive 
disputes  and  decisions  this  court  is  practically  building  up  what 
may  not  improperly  be  called  interstate  common  law.  This  very 
case  presents  a  significant  illustration.  Before  either  Kansas 
or  Colorado  was  settled  the  Arkansas  river  was  a  stream  run- 
ning through  the  territory  which  now  composes  these  twro  states. 
Arid  lands  abound  in  Colorado.  Reclamation  is  possible  only  by 
the  application  of  water,  and  the  extreme  contention  of  Colo- 
rado is  that  it  has  a  right  to  appropriate  all  the  waters  of  this 
stream  for  the  purposes  of  irrigating  its  soil  and  making  more 
valuable  its  own  territory.  But  the  appropriation  of  the  entire 
flow  of  the  river  would  naturally  tend  to  make  the  lands  along 
the  stream  in  Kansas  less  arable.  It  would  be  taking  from  the 
adjacent  territory  that  which  had  been  the  customary  natural 
means  of  preserving  its  arable  character.  On  the  other  hand,  the 
possible  contention  of  Kansas,  that  the  flowing  water  in  the 


Arkansas  must,  in  accordance  with  the  extreme  doctrine  of  the 
common  law  of  England,  be  left  to  flow  as  it  was  wont  to  flow, 
no  portion  of  it  being  appropriated  in  Colorado  for  the  purposes 
of  irrigation,  would  have  the  effect  to  perpetuate  a  desert  con- 
dition in  portions  of  Colorado  beyond  the  power  of  reclamation. 
Surely  here  is  a  dispute  of  a  justiciable  nature  which  must  and 
ought  to  be  tried  and  determined.  If  the  two  states  were  abso- 
lutely independent  nations  it  would  be  settled  by  treaty  or  by 
force.  Neither  of  these  ways  being  practicable,  it  must  be  set- 
tled by  decision  of  this  court. 

It  will  be  perceived  that  Kansas  asserts  a  pecuniary  interest 
as  the  owner  of  certain  tracts  along  the  banks  of  the  Arkansas 
and  as  the  owner  of  the  bed  of  the  stream.  We  need  not  stop  to 
consider  what  rights  such  private  ownership  of  property  might 
give. 

In  deciding  this  case  on  demurrer  we  said,  referring  to  the 
opinion  in  Missouri  vs.  Illinois  (p.  142): 

"As  will  be  perceived,  the  court  there  ruled  that  the  mere 
fact  that  a  state  had  no  pecuniary  interest  in  the  controversy, 
would  not  defeat  the  original  jurisdiction  of  this  court,  which 
might  be  invoked  by  the  state  as  parens  patriae,  trustee,  guar- 
dian or  representative  of  all  or  a  considerable  portion  of  its  citi- 
zens and  that  the  threatened  pollution  of  the  waters  of  a  river 
flowing  between  states,  under  the  authority  of  one  of  them, 
thereby  putting  the  health  and  comfort  of  the  citizens  of  the 
other  in  jeopardy,  presented  a  cause  of  action  justiciable  under 
the  constitution. 

"In  the  case  before  us  the  state  of  Kansas,  files  her  bill  as 
representing  and  on  behalf  of  her  citizens,  as  well  as  in  vindica- 
tion of  her  alleged  rights  as  an  individual  owner,  and  seeks  re- 
lief in  respect  of  being  deprived  of  the  waters  of  the  river  ac- 
customed to  flow  through  and  across  the  state,  and  the  conse- 
quent destruction  of  the  property  of  herself  and  of  her  citizens 
and  injury  to  their  health  and  comfort.  The  action  complained 
of  is  state  action  and  not  the  action  of  state  officers  in  abuse  or 
excess  of  their  powers." 

It  is  the  state  of  Kansas  which  invokes  the  action  of  this 
court,  charging  that  through  the  action  of  Colorado  a  large 
portion  of  its  territory  is  threatened  with  disaster.  In  this  re- 
spect it  is  in  no  manner  evading  the  provisions  of  the  eleventh 
amendment  to  the  federal  constitution.  It  is  not  acting  directly 
and  solely  for  the  benefit  of  any  individual  citizen  to  protect  his 
riparian  rights.  Beyond  its  property  rights  it  has  an  interest  as 
a  state  in  this  large  tract  of  land  bordering  on  the  Arkansas 
river.  Its  prosperity  affects  the  general  welfare  of  the  state. 


158 

The  controversy  arises,  therefore,  above  a  mere  question  of  local 
private  right  and  involves  a  matter  of  state  interest,  and  must 
be  considered  from  that  standpoint.  Georgia  vs.  Tennessee  Cop- 
per Co.,  ante. 

This  changes  in  some  respects  the  scope  of  our  inquiry.  It 
is  not  limited  to  the  simple  matter  of  whether  any  portion  of  the 
waters  of  the  Arkansas  is  withheld  by  Colorado.  We  must  con- 
sider the  effect  of  what  has  been  done  upon  the  conditions  in 
the  respective  states  and  so  adjust  the  dispute  upon  the  basis  of 
equality  of  rights  as  to  secure  as  far  as  possible  to  Colorado  the 
benefits  of  irrigation  without  depriving  Kansas  of  the  like  bene- 
ficial effects  of  a  flowing  stream.  A  little  reflection  will  make 
this  clear.  Suppose  the  controversy  was  between  two  individ- 
uals, upper  and  lower  riparian  owners  on  a  little  stream  with 
rocky  bank  and  rocky  bottom.  The  question  properly  might  be 
limited  to  the  single  one  of  the  diminution  of  the  flow  by  the  up- 
per riparian  proprietor.  The  lower  riparian  proprietor  might 
insist  that  he  was  entitled  to  the  full,  undiminished  and  unpol- 
luted flow  of  the  water  of  the  stream  as  it  had  been  wont  to 
run.  It  would  not  be  a  defense  on  the  part  of  the  upper  riparian 
proprietor  that  by  the  use  to  which  he  had  appropriated  the 
water  he  had  benefited  the  lower  proprietor,  or  that  the  latter 
had  received  in  any  other  respects  an  equivalent.  The  question 
would  be  one  of  legal  right,  narrowed  to  place,  amount  of  flow 
and  freedom  from  pollution. 

We  do  not  intimate  that  entirely  different  considerations 
obtain  in  a  controversy  between  two  states.  Colorado  could  not 
be  upheld  in  appropriating  the  entire  flow  of  the  Arkansas  river, 
on  the  ground  that  it  is  willing  to  give,  and  does  give,  to  Kansas 
something  else  which  may  be  considered  of  equal  value.  That 
would  be  equivalent  to  this  court's  making  a  contract  between  two 
states,  and  that  it  is  not  authorized  to  do.  But  we  are  justified 
in  looking  at  the  question  not  narrowly  and  solely  as  to  the 
amount  of  the  flow  in  the  channel  of  the  Arkansas  river,  inquiring 
merely  whether  any  portion  thereof  is  appropriated  by  Colorado, 
but  we  may  properly  consider  what,  in  case  a  portion  of  that  flow 
is  appropriated  by  Colorado,  are  the  effects  of  such  appropriation 
upon  Kansas  territory.  For  instance,  if  there  be  many  thousands 
of  acres  in  Colorado  destitute  of  vegetation,  which  by  the  taking 
of  water  from  the  Arkansas  river  and  in  no  other  way  can  be 
made  valuable  as  arable  lands  producing  an  abundance  of  vege- 
table growth,  and  this  transformation  of  desert  land  has  the 
effect,  through  percolation  of  water  in  the  soil,  or  in  any  other 
way,  of  giving  to  Kansas  territory,  although  not  in  the  Arkansas 
valley,  a  benefit  from  water  as  great  as  that  which  would  enure 


by  keeping  the  flow  of  the  Arkansas  in  its  channel  undiminished, 
then  we  may  rightfully  regard  the  usefulness  to  Colorado  as 
justifying  its  action,  although  the  locality  of  the  benefit  which 
the  flow  of  the  Arkansas  through  Kansas  has  territorially 
changed.  Science  may  not  as  yet  be  able  to  give  positive  infor- 
mation as  to  the  processes  by  which  the  distribution  of  water 
over  certain  territory  has  operation  beyond  the  mere  limits  of 
the  area  in  which  the  water  is  distributed,  but  they  who  have 
dwelt  in  the  West  know  that  there  are  constant  changes  in  the 
productiveness  of  different  portions  of  the  territory,  owing,  ap- 
parently, to  a  wider  and  more  constant  distribution  of  water. 
To  illustrate,  the  early  settlers  of  Kansas  territory  found  that 
farming  was  unsuccessful  unless  confined  to  its  eastern  100  or  120 
miles.  West  of  that  crops  are  almost  always  a  failure,  but  now 
that  region  is  the  home  of  a  large  population,  with  crops  as  cer- 
tain as  those  elsewhere,  and  yet  this  change  has  not  been  brought 
about  by  irrigation.  A  common  belief  is  that  the  original  sod 
was  largely  impervious  to  water,  that  when  the  spring  rains 
came  the  water,  instead  of  sinking  into  the  ground,  filled  the 
watercourses  to  overflowing  and  ran  off  to  the  Gulf  of  Mexico. 
There  was  no  water  in  the  soil  to  go  up  in  vapor  and  come  down 
in  showers,  and  the  constant  heat  of  summer  destroyed  the  crops ; 
but  after  the  sod  had  once  been  turned  the  water  from  those 
rains  largely  sank  into  the  ground,  and  then  as  the  summer  came 
on  went  up  in  vapor  and  came  down  in  showers,  and  so  by  con- 
tinued watering  prevented  the  burning  up  of  the  growing  crops. 
We  do  not  mean  to  say  that  science  has  demonstrated  this  to  be 
the  operating  cause  or  that  other  theories  are  not  propounded, 
but  the  fact  is  that,  instead  of  stopping  at  a  distance  of  120  miles 
from  the  Missouri  river,  the  area  of  cultivated  and  profitably 
cultivated  land  has  extended  150  to  200  miles  further  west,  and 
seems  to  be  steadily  moving  towards  the  western  boundary  of  the 
state.  Now,  if  there  is  this  change  gradually  moving  westward 
from  the  Missouri  river,  is  it  altogether  an  unreasonable  expecta- 
tion that  as  the  arid  lands  of  Colorado  are  irrigated  and  become 
from  year  to  year  covered  with  vegetation,  there  will  move  east- 
ward from  Colorado  an  extension  of  the  area  of  arable  lands 
until,  between  the  Missouri  river  and  the  mountains  of  Colorado, 
there  shall  be  no  land  which  is  not  as  fully  subject  to  cultivation 
as  lands  elsewhere  in  the  country?  Will  not  the  productiveness 
of  Kansas  as  a  whole,  its  capacity  to  support  increasing  popula- 
tion, be  increased  by  the  use  of  the  water  in  Colorado  for  irriga- 
tion? May  we  not  consider  some  appropriation  by  Colorado  of 
the  waters  of  the  Arkansas  to  the  irrigation  and  reclamation  of 
its  arid  lands  as  a  reasonable  exercise  of  its  sovereignty  and  as 


not  unreasonably  trespassing  upon  any  rights  of  Kansas.  And 
here  we  must  notice  the  local  law  of  Kansas  as  declared  by  its 
Supreme  Court,  premising  that  the  views  expressed  in  this  opinion 
are  to  be  confined  to  a  case  in  which  the  facts  and  the  local  law 
of  the  two  states  are  as  here  disclosed.  In  Clark  vs:  Allaman, 
71  Kan.,  206,  is  an  exhaustive  discussion  of  the  question,  Mr. 
Justice  Burch  delivering  the  unanimous  opinion  of  the  court. 
In  the  syllabus,  which  by  statute  (Compiled  Laws,  Kansas,  p.  317, 
§14)  is  prepared  by  the  justice  writing  the  opinion,  and  states 
the  law  of  the  case,  are  these  paragraphs: 

"The  use  of  the  water  of  a  running  stream  for  irrigation, 
after  its  primary  uses  for  quenching  thirst  and  other  domestic 
requirements  have  been  subserved,  is  one  of  the  common  law 
rights  of  a  riparian  proprietor. 

"The  use  of  water  by  a  riparian  proprietor  for  irrigation 
purposes  must  be  reasonable  under  all  the  circumstances,  and 
the  right  must  be  exercised  with  due  regard  to  the  equal  right  of 
every  other  riparian  owner  along  the  course  of  the  stream. 

"A  diminution  of  the  flow  of  water  over  riparian  land  caused 
by  its  use  for  irrigation  purposes  by  upper  riparian  proprietors 
occasions  no  injury  .for  which  damages  may  be  allowed  unless 
it  results  in  subtracting  from  the  value  of  the  land  by  inter- 
fering with  the  reasonable  uses  of  the  water  which  the  land 
owner  is  able  to  enjoy. 

"In  determining  the  quantity  of  land  tributary  to  and  lying 
along  a  stream  which  a  single  proprietor  may  irrigate  the  prin- 
ciple of  equality  of  right  with  others  should  control,  irrespective 
of  the  accidental  matter  of  governmental  subdivisions  of  the 
land." 

And  in  the  opinion,  on  pages  242,  243,  are  quoted  these  ob- 
servations of  Chief  Justice  Shaw,  in  the  case  of  P]lliott  vs\  Fitch- 
burg  Railroad  Company,  10  Cush.,  191,  193,  196 : 

"The  right  to  flowing  water  is  now  weH  settled  to  be  a  right 
incident  to  property  in  the  land ;  it  is  a  right  publici  juris,  of 
such  a  character,  that  whilst  it  is  common  and  equal  to  all, 
through  whose  land  it  runs,  and  no  one  can  obstruct  or  divert 
it,  yet,  as  one  of  the  beneficial  gifts  of  Providence,  each  proprietor 
has  a  right  to  a  just  and  reasonable  use  of  it,  as  it  passes  through 
his  land;  and  so  long  as  it  is  not  wholly  obstructed  or  diverted, 
or  no  larger  appropriation  of  the  water  running  through  it  is 
made  than  a  just  and  reasonable  use,  it  can  not  be  said  to  be 
wrongful  or  injurious  to  a  proprietor  lower  down.  What  is  such 
a  just  and  reasonable  use  may  often  be  a  difficult  question,  de- 
pending on  various  circumstances.  To  take  a  quantity  of  water 
from  a  large  running  stream  for  agriculture  or  manufacturing 


161 

purposes,  would  cause  no  sensible  or  practicable  diminution  of 
the  benefit,  to  the  prejudice  of  a  lower  proprietor;  whereas,  taking 
the  same  quantity  from  a  small  running  brook  passing  through 
many  farms,  would  be  of  great  and  manifest  injury  to  those 
below,  who  need  it  for  domestic  supply  or  watering  cattle;  and 
therefore  it  would  be  an  unreasonable  use  of  the  water,  and  an 
action  would  lie  in  the  latter  case  and  not  in  the  former.  It  is, 
therefore,  to  a  considerable  extent  a  question  of  degree;  still, 
the  rule  is  the  same,  that  each  proprietor  has  a  right  to  a  reason 
able  use  of  it,  for  his  own  benefit,  for  domestic  use,  and  for  manu 
facturing  and  agricultural  purposes.  *  *  * 

"Tli at  a  portion  of  the  water  of  a  stream  may  be  used  for 
the  purpose  of  irrigating  land,  we  think  is  well  established  as  one 
of  the  rights  of  the  proprietors  of  the  soil  along  or  through  which 
it  passes.  Yet  a  proprietor  can  not,  under  color  of  that  right,  or 
for  the  actual  purpose  of  irrigating  his  own  land,  wliollv  abstract 
or  divert  the  watercourse,  or  take  such  an  unreasonable  quantity 
of  water,  or  make  such  unreasonable  use  of  it,  as  to  deprive  other 
proprietors  of  the  substantial  benefits  which  they  might  derive 
from  it,  if  not  diverted  or  used  unreasonably.  *  *  * 

"This  rule,  that  no  riparian  proprietor  can  wholly  abstract 
or  divert  a  watercourse,  by  which  it  would  cease  to  be  a  running 
stream,  or  use  it  unreasonably  in  its  passage,  and  thereby  deprive 
a  lower  proprietor  of  a  quality  of  his  property,  deemed  in  law 
incidental  and  beneficial,  necessarily  flows  from  the  principle  that 
the  right  to  the  reasonable  and  beneficial  use  of  a  running  stream 
is  common  to  all  the  riparian  proprietors,  and  so  each  is  bound 
so  to  use  his  common  right,  as  not  essentially  to  prevent  or  inter- 
fere with  an  equally  beneficial  enjoyment  of  the  common  right, 
by  all  the  proprietors.  *  *  * 

"The  right  to  the  use  of  flowing  water  is  publici  juris,  and 
common  to  all  the  riparian  proprietors ;  it  is  not  an  absolute  and 
exclusive  right  to  all  the  water  flowing  past  their  land,  so  that 
any  obstruction  would  give  a  cause  of  action ;  but  it  is  a  right 
to  the  flow  and  enjoyment  of  the  water,  subject  to  a  similar  right 
in  all  the  proprietors,  to  the  reasonable  enjoyment  of  the  same 
gift  of  Providence.  It  is,  therefore,  only  for  an  abstraction  and 
deprivation  of  this  common  benefit,  or  for  an  unreasonable  and 
unauthorized  use  of  it,  that  an  action  will  lie." 

As  Kansas  thus  recognizes  the  right  of  appropriating  the 
waters  of  a  stream  for  the  purposes  of  irrigation,  subject  to  the 
condition  of  an  equitable  division  between  the  riparian  pro- 
prietors, she  can  not  complain  if  the  same  rule  is  administered 
between  herself  and  a  sister  state.  And  this  is  especially  true 
when  the  waters  are,  except  for  domestic  purposes,  practically 


162 

useful  only  for  purposes  of  irrigation.  The  Arkansas  river,  from 
its  source  to  the  eastern  end  of  the  Royal  Gorge,  is  a  mountain 
torrent,  coming  down  between  rocky,  banks  and  over  a  rocky 
bed.  Along  this  distance  it  is  of  comparatively  little  use  for 
irrigation  purposes.  After  it  debouches  from  the  Royal  Gorge 
it  enters  a  valley,  in  which  it  wanders  from  one  side  to  the  other 
through  eastern  Colorado,  southwestern  Kansas  and  into  Okla- 
homa, with  but  a  slight  descent,  and  presenting  but  little  oppor- 
tunities for  the  development  of  water  power  through  falls  or  by 
dams.  Its  length  in  Kansas  is  about  three  hundred  and  fifty 
miles,  and  the  descent  is  only  2,320  feet,  or  less  than  seven  feet 
to  a  mile.  There  are  substantially  no  falls,  no  narrow  passage- 
ways in  which  dams  can  be  readily  constructed  for  the  develop- 
ment of  water  power;  and  while  there  are  some  in  eastern  Colo- 
rado, yet  they  are  of  little  elevation  and  mainly  to  assist  in  the 
storing  of  water  for  purposes  of  irrigation.  So  that,  if  the  ex- 
treme rule  of  the  common  law  were  enforced,  Oklahoma  having 
the  same  right  to  insist  that  .there  should  be  no  diversion  of  the 
stream  in  Kansas  for  the  purposes  of  irrigation  that  Kansas  has 
in  respect  to  Colorado,  the  result  would  be  that  the  waters,  except 
for  the  meagre  amount  required  for  domestic  purposes,  would 
flow  through  eastern  Colorado  and  Kansas  of  comparatively  little 
advantage  to  either  state,  and  both  would  lose  the  great  benefit 
which  comes  from  the  use  of  the  water  for  irrigation.  The  drain- 
age area  of  the  Arkansas  river  in  Colorado  is  26,000  square  miles ; 
in  Kansas,  20,000  square  miles;  and  all  this  area,  unless  the 
stream  can  be  used  for  purposes  of  irrigation,  would  be  left  to 
the  slow  development  which  comes  from  the  cultivation  of  the 
soil. 

The  testimony  in  this  case  is  voluminous,  amounting  to  8,559 
typewritten  pages,  with  122  exhibits,  and  it  would  be  impossible 
to  make  a  full  statement  of  facts  without  an  extravagant  exten- 
sion of  this  opinion,  which  is  already  too  long,  and  yet  some  facts 
must  be  stated  to  indicate  the  basis  for  the  conclusion  to  which 
we  have  come.  It  must  also  be  noted  that,  as  might  be  expected 
in  such  a  volume  of  testimony,  coming  as  it  does  from  three  hun- 
dred and  forty-seven  witnesses,  there  is  no  little  contradiction 
and  a  good  deal  of  confusion,  and  this  contradiction  is  to  be 
found  not  merely  in  the  testimony  of  witnesses,  but  also  in  the 
exhibits,  among  which  are  reports  from  the  officials  of  the  gov- 
ernment and  the  two  states.  We  have  endeavored  to  deduce  from 
this  volume  those  matters  which  seem  most  clearly  proved,  and 
must,  as  to  other  matters,  be  content  to  generalize  and  state  that 
which  seems  to  be  the  tendency  of  the  evidence. 

Colorado  is  divided  into  five  irrigating  divisions,  each  of 
which  is  in  charge  of  a  division  engineer.  That  which  includes 


the  drainage  area  of  the  Arkansas  is  District  No.  2,  divided  into 
eleven  districts.  Under  the  laws  of  Colorado,  irrigating  ditches 
have  been  established  in  this  district,  and  the  amount  of  water 
which  each  may  take  from  the  river  decreed.  In  addition,  some 
reservoirs  have  been  built  for  storing  the  surplus  waters  which 
come  down  in  times  of  flood,  and  this  adds  largely  to  the  amount 
available  for  irrigation.  The  storage  capacity  of  six  of  these 
reservoirs  is  shown  to  be  8,527,673,652  cubic  feet.  The  significance 
and  value  of  these  reservoirs  can  be  appreciated  when  we  remem- 
ber that  the  Arkansas,  like  many  other  streams,  has  its  origin  in 
the  mountain  districts  of  Colorado,  and  that  by  the  melting  of  the 
snows  almost  every  year  there  is  a  flood.  The  amount  of  water 
authorized  to  be  taken  by  the  ditches  from  the  river  is,  as  alleged 
in  the  bill,  4,200  cubic  feet,  and  from  its  affluents  and  tributaries 
4,300  feet.  (Whenever  this  term  is  used  in  reference  to  the  flow 
of  water  it  means  the  number  of  cubic  feet  that  pass  in  a  second.) 
The  average  flow  of  the  river  as  it  comes  out  of  the  Royal  Gorge 
at  Canon  City,  is,  as  shown  by  official  measurements  for  a  series 
of  years,  750  cubic  feet.  So  that  it  appears  that  the  irrigating 
ditches  are  authorized  to  take  from  the  Arkansas  river  much 
more  water  than  passes,  in  the  channel  into  the  valley.  It  is  not 
clear  what  surplus  water,  if  any,  comes  out  of  the  tributaries. 
There  are  some  twenty-five  of  them,  the  average  flow  from  four 
of  which  into  the  Arkansas  is  313  cubic  feet.  Aside  from  this 
surplus  water  some  may  be  returned  through  overflow  of  the 
ditches  or  from  seepage.  What  either  of  these  amounts  may  be 
is  not  disclosed.  Indeed,  the  extent  to  which  seepage  operates 
in  adding  to  the  flow  of  a  stream,  or  in  distributing  water  through 
lands  adjacent  to  those  upon  which  water  is  poured,  is  some- 
thing proof  of  which  must  necessarily  be  almost  impossible.  We 
may  note  the  fact  that  a  tract,  bordering  upon  land  which  has 
been  flooded,  shows  by  its  increasing  vegetation  that  it  has  re- 
ceived in  some  way  the  benefit  of  water,  and  yet  the  amount  of 
the  water  passing  by  seepage  may  never  be  definitely  known.  The 
underground  movement  of  water  will  always  be  a  problem  of 
uncertainty.  We  know  that  when  water  is  turned  upon  dry  and 
barren  soil  the  barrenness  disappears,  vegetation  is  developed, 
and  that  which  was  a  desert  becomes  a  garden.  It  is  the  magic 
of  transformation ;  the  wilderness  budding  and  blossoming  as  the 
rose.  The  writer  of  this  opinion  recalls  a  conversation  with 
Bayard  Taylor,  the  celebrated  traveler,  in  which  the  latter  stated 
that  nothing  had  contributed  so  much  to  secure  the  steady  con- 
trol of  the  French  in  Algiers  as  the  fact  that  after  taking  pos- 
session of  that  territory  they  sank  artesian  wells  on  the  borders 
of  the  desert,  and  thus  reclaimed  portions  of  it,  for  the  Arabs 


164 


believed  that  people  who  could  reclaim  the  desert  were  possessed 
of  a  power  that  could  not  be  withstood. 

Further,  adjacent  barren  ground  is  slowly  but  surely  af- 
fected, and  itself  begins  to  increase  its  vegetation.  We  may  not 
be  entirely  sure  as  to  the  methods  by  which  this  change  is  ac- 
complished, although  the  result  is  undoubted.  It  may  be  that 
water  percolating  under  the  surface  has  reached  this  adjacent 
ground.  Perhaps  the  vegetation,  which  we  know  attracts  mois- 
ture from  the  air,  may  increase  the  rainfall,  and  thus  affect  the 
adjacent  barren  regions. 

It  appears  that  prior  to  1885  there  was  comparatively  little 
TVater  taken  from  the  Arkansas  for  irrigation  purposes — cer- 
tainly not  enough  to  make  any  perceptible  impression  on  the  flow 
of  the  river — but  about  that  time  certain  corporations  com- 
menced the  work  of  irrigation  on  a  large  scale,  with  ditches 
some  of  which  might  well  be  called  canals.  Thus,  in  1884  work 
was  commenced  on  ditches  capable  of  carrying  off  450  cubic  feet; 
in  1887  others  capable  of  carrying  off  1,481  cubic  feet,  and  in 
1890  still  others  carrying  1.705  cubic  feet.  Most  of  these  were 
completed  within  two  years  after  the  commencement  of  the  sev- 
eral works.  By  the  year  1902,  according  to  the  report  of  the 
Census  Bureau  of  the  United  States,  there  were  300,115  acres,  in 
4,557  farms,  actually  irrigated. 

The  counties  in  Colorado  from  Canon  City,  eastward 
through  which  the  Arkansas  runs  are  Fremont,  Pueblo,  Otero, 
Bent  and  Prowers.  The  following  tables  prepared  by  the  de- 
fendants from  various  census  reports  show  the  population,  num- 
ber of  acres  cultivated  and  total  value  of  farm  products  in  these 
several  counties  for  the  years  1880,  1890  and  1900: 

Population. 

COUNTY.                                  1880.  1890.  1900. 

Fremont    4,735  9,156  15,636 

Pueblo   7,617  31,491  34,448 

Otero 4,192  11,522 

Bent 1,654  1,313  3,049 

Prowers 1,969  3,766 


Making  in  the  aggregate 14,006     48,121     68,421 


165 

Xo.  of  Acres  Cultivated. 

COUNTY.                            1880.  1890.  '   1900. 

Fremont 16,160  52,868          109,488 

Pueblo , 51,894  100,697          478,821 

Otero 61,347          244,594 

Bent    30,921  30,058          118,485 

•Prowers    46,447          217,332 


98,975  291,417  1,168,720 

Value  of  Farm  Products. 

COUNTY.                            1880.  1890.  1900. 

Fremont $  76,900  $237,980  $    472,293 

Pueblo 136,184  244,580  691,693 

Otero 208.860  1,089,344 

Bent 105,621  35,070  670,541 

Prowers    .  60,500  465,688 


$318,705     $786,990     $3,389,559 

These  tables  disclose  a  very  marked  development  in  the  pop- 
ulation, area  of  land  cultivated  and  amount  of  agricultural 
products.  Whatever  has  been  effective  in  bringing  about  this 
development  is  certainly  entitled  to  recognition,  and  should  not 
be  wantonly  or  unnecessarily  destroyed  or  interfered  with.  That 
this  development  is  largely  owing  to  irrigation  is  something  of 
which  from  a  consideration  of  the  testimony  there  can  be  no 
reasonable  doubt.  It  has  been  a  prime  factor  in  securing  this 
result,  and  before  at  the  instance  of  a  sister  state  this  effective 
cause  of  Colorado's  development  is  destroyed  or  materially  in- 
terfered with  it  should  be  clear  that  such  sister  state  has  not 
merely  some  technical  right,  but  also  a  right  with  a  correspond- 
ing benefit. 

It  may  be  asked  why  cultivation  in  Colorado  without  irri- 
gation may  not  have  the  same  effect  that  has  attended  the  cul- 
tivation in  Kansas  wrest  of  where  it  was  productive  when  the 
territory  was  first  settled.  It  may  possibly  have  such  effect  to 
some  degree,  but  it  must  be  remembered  that  the  land  in  Colo- 
rado is  many  hundred  feet  in  elevation  above  that  in  Kansas; 
that  large  portions  of  it  are  absolutely  destitute  of  sod,  and  that 
cultivation  would  have  comparatively  little  effect  upon  the  re- 
tention of  water.  Add  further  the  fact  that  the  rainfall  in  Colo- 
rado is  less  than  that  in  Kansas,  and  it  would  seem  almost  cer- 
tain that  reliance  upon  mere  cultivation  of  the  soil  would  not 
have  anything  like  the  effect  in  Colorado  that  it  has  had  in  Kan- 


166 

sas,  arid  that  the  barrenness  which  characterized  portions  of  the 
territory  of  Colorado  would  have  continued  for  an  indefinite 
time  unless  relieved  by  irrigation. 

Turning  to  Kansas,  the  counties  along  the  Arkansas  river, 
commencing  from  the  Colorado  line,  are:  Hamilton,  Kearney, 
Finney,  Gray,  Ford,  Edwards,  Pawnee,  Barton,  Rice,  Reno,  Sedg- 
wick,  Sumner,  Cowley.  Taking  the  same  years  as  are  given  for 
the  Colorado  counties,  the  population  is  shown  to  be: 

Population. 

COUNTY.                      1880.  1890.  1900. 

Hamilton 168  '  2,027  1,426 

Kearney 159        1,571  1,107 

Finney 3,350  3.469 

Gray 2,415  1,264 

Ford   3,122         5,308  5,497 

Edwards    2,409         3,600  3,682 

Pawnee   5,396        5,204  5,084 

Barton' 10,318  13,172  13,784 

Rice 9,292  14,451  14,745 

Reno 12,826  27,079  29,027 

Sedgwick 18,753  43,626  44,037 

Sumner    20,812  30,271  25,631 

Cowley 21,538  34,478  30,156 


104,793     186,552     178,909 

We  have  been  furnished  by  the  United  States  census  office 
with  statistics  of  the  corn  and  wheat  crops  of  those  counties 
from  the  years  1889  to  1904.  Corn,  wheat  and  hay  are  the  lead- 
ing crops  in  Kansas.  It  would  unnecessarily  prolong  this  opin- 
ion to  copy  these  tables  in  full,  so  we  give 'the  figures  for  1890, 
1895,  1900  and  1904: 


167 


Acreage  and  Production  of  Corn  and  Wheat  in  Kansas- 
Thirteen  Counties. 


Year. 
1890. 

1895. 

County. 
Hamilton  

( 
Acres. 

80 

Bushels. 
400 
8,720 
48,460 
2,465 
12,464 
20,580 
2,720 
25,662 
329,520 
989,720 
744,535 
267,680 
887,474 

Wheat. 
Acres.      Bushels. 
449            6,636 
586         10,658 
1,410          24,740 
3,335          38,724 
7,190        107,295 
8,876        168,094 
39,464       591,402 
99,738     1,294,639 
52,941        792,345 
35,121        351,210 
52,506       944,804 
134,352    2,149,116 
28,073       282,666 

Kearney 

872 

Finney   

2423 

Gray  . 

....        493 

Ford  .... 

1558 

Edwards   

....     2,058 

Pawnee   .  . 

544 

Barton  

3,666 

Rice 

27460 

Reno    ... 

98972 

Sedgwick  

....   67,685 

Sumner 

19  120 

Cowley  .  . 

63  391 

Totals  

288,322 

3,340,400 

3,232 
5,698 
20,580 
11,150 
194,320 
212,220 
152,608 
778,732 
3,371,632 
7,406,820 
5,147,442 
2,179,704 
2,674,900 

464,041 

4,360 
2,917 
27,428 
12,297 
36,626 
47,479 
113,980 
179,761 
127,200 
89,973 
93,351 
248,115 
89,866 

6,762,329 

12,576 
6,430 
69,801 
12,309 
109,914 
94,958 
342,075 
359,284 
254,394 
314,573 
279,711 
619,884 
673,822 

Hamilton  
Kearney  
Finney   

404 
914 
2,058 
1,115 
12,145 
21,222 
19,076 
103,831 
153,256 
205,745 
190,646 
181,642 
133,745 

Gray 

Ford  

Edwards   

Pawrnee 

Barton   

Rice  

Reno                .  .  . 

Sedgwick  
Sumner   .    . 

Cowley  

Totals 1,025,799  22,159,038     1,073,353     3,149,731 


168 


Acreage  and  Production  of  Corn  and  Wheat  in  Kansas — 
Thirteen  Counties — Continued. 


Year.  CQunty. 

1900.  Hamilton  .  .  . 

Kearney 

Finney   

Gray  ....... 

Ford 

Edwards   .  . . 

Pawnee 

Barton   

Rice    

Reno 

Sedgwick  . .  . 

Sumner    .  . . . 

.Cowley 

Totals  . 


Corn. 
Acres.       Bushels. 


266 

3,990 

538 

11,298 

1,213 

18,195 

2,001 

30,015 

11,215 

145,795 

25,032 

325,416 

16,257 

146,313 

32,649 

261,192 

71,151 

355,755 

199,150 

1,991,500 

153,635 

2,766,430 

102,057 

2,143,197 

121,398 

2,792,154 

\V 

Acres. 

155 

506 

427 

4,028 

23,416 

43.525 

115.931 

254,130 

1 48,597 

110,404 

123.339 

288,133 

79,948 


heat. 

Hushels. 

1,550 

5,492 

4,234 

59,605 

444,904 

I5JMUOO 

1,969,801 

5,081,352 

.">.  120,537 

2,097.276 

2,589,811 

5,761,260 

1.439,064 


736,562  10,991,250     1,192,534  23,271.286 


1904.  Hamilton  ......  120 

Kearney 306 

Finney   759 

Gray 1,579 

Ford  10,631 

Edwards    23,396 

Pawnee   13,272 

Barton 26,984 

Rice    59,851 

Reno 138,899 

Sedgwick  ......  132,374 

Sumner    .  .  79,808 

Cowley 109,708 


1,800 

6,120 

7,590 

25,264 

170,096 

584,900 

331,800 

728,568 

1,556,126 

4,028,071 

3,441,724 

1,995,200 

2,962,116 


271 

536 

7,012 

17,268 

72,917 

130,313 

162,970 

262,673 

160,853 

207,002 

151,635 

294,489 

68,477 


2,297 

(5.244 

37.382 

(19,590 

3<;5,299 

1,302,834 

1.629,246 

3,414.731 

2,251,838 

3.518.7^2 

1,971,255 

3,828,192 

821.  <>r>2 


Totals 597,687  15,839,375     1,536,416  19,219,312 

Comparing  the  tables  of  population  it  will  be  perceived  that 
both  the  counties  in  Colorado  and  Kansas  made  a  considerable 
increase  in  the  years  from  1880  to  1890 ;  that  while  the  Colorado 
counties  continued  their  increase  from  1890  to  1900,  the  Kansas 
counties  lost.  As  the  withdrawal  of  water  in  Colorado  for  irri- 
gating purposes  became  substantially  effective  about  the  year 
1890,  it  might,  if  nothing  else  appeared,  not  unreasonably  be 
concluded  that  the  diminished  flow  of  the  river  in  Kansas,  caused 
by  the  action  of  Colorado,  had  resulted  in  making  the  land  more 


169 

unproductive,  and  hence  induced  settlers  to  leave  the  state.  As 
against  this  it  should  be  noted,  as  a  matter  of  history,  that  in 
the  years  preceding  1890,  Kansas  passed  through  a  period  of  de- 
pression, with  crops  largely  a  failure  in  different  parts  of  the 
state.  But,  more  than  that,  in  1889  Oklahoma,  lying  directly 
south  of  Kansas,  was  opened  for  settlement  and  immediately 
there  was  a  large  immigration  into  that  territory,  coming  from 
all  parts  of  the  West,  and  especially  from  the  state  of  Kansas, 
induced  by  glowing  reports  of  its  great  possibilities.  The  popu- 
lation of  Oklahoma,  as  shown  by  the  United  States  census,  was, 
in  1S1MI,  01,834,  and  in  1900,  348,331. 

Turning  to  the  tables  of  the  corn  and  wheat  products,  they 
do  not  disclose  any  marked  injury  which  can  be  attributed  to  a 
diminution  of  the  flow  of  the  river.  While  there  is  a  variance 
in  the  amount  produced  in  the  different  counties  from  year  to 
year,  it  is  a  variance  no  more  than  that  which  will  be  found  in 
other  parts  of  the  Union,  and  although  the  population  from  1890 
to  11)00  in  fact  diminished,  the  amount  of  both  the  corn  and 
wheat  product  largely  increased.  Not  only  was  the  total  product 
increased,  but  the  productiveness  per  acre  seems  to  have  been 
materially  improved.  Take  the  corn  crop,  and  per  acre,  it  was, 
in  1890,  12  bushels  and  a  fraction;  in  1895,  21  and  a  fraction;  in 
11)00,  15,  and  in  1904,  28  bushels.  Of  w^heat,  the  product  per  acre 
in  1890  was  nearly  15  bushels;  in  1895  it  was  only  about  3 
bushels.  (For  some  reason,  while  that  was  a  good  year  for  corn, 
it  seems  to  have  been  a  bad  year  for  wlieat.)  But  in  1900  the 
product  per  acre  arose  1<>  11)  bushels,  and  in  1904  it  was  12 
bushels. 

These  are  official  figures  taken  from  the  United  States  census 
reports,  and  they  tend  strongly  to  show  that  the  withdrawal  of 
the  water  in  Colorado  for  purposes  of  irrigation  has  not  proved 
a  source  of  serious  detriment  to  the  Kansas  counties  along  the 
Arkansas  river.  It  is  not  strange  that  the  western  counties 
show  the  least  development,  for  being  nearest  the  irrigation  in 
Colorado,  they  would  be  most  affected  thereby.  At  one  time  there 
were  some  irrigating  ditches  in  these  western  counties,  which 
promised  to  be  valuable  in  supplying  water  and  thus  increasing 
the  productiveness  of  the  lands  in  the  vicinity  of  the  stream,  and 
it  is  true  that  those  ditches  have  ceased  to  be  of  much  value,  the 
flow  in  them  having  largely  diminished. 

It  can  not  be  denied  in  view  of  all  the  testimony  (for  that 
which  we  have  quoted  is  but  a  sample  of  much  more  bearing  upon 
the  question),  that  the  diminution  of  the  flow7  of  water  in  the 
river  by  the  irrigation  of  Colorado  has  worked  some  detriment 
to  the  southwestern  part-  of  Kansas,  and  yet  when  we  compare 


170 

the  amount  of  this  detriment  with  the  great  benefit  which  has 
obviously  resulted  to  the  counties  in  Colorado,  it  would  seem 
that  equality  of  right  and  equity  between  the  two  states  forbids 
any  interference  with  the  present  withdrawal  of  water  in  Colo- 
rado for  purposes  of  irrigation. 

Many  other  matters  have  been  presented  and  discussed.  We 
have  examined  and  fully  considered  them,  but,  as  heretofore 
stated,  we  shall  have  to  content  ourselves  with  merely  general 
observations  respecting  them.  Evidence  has  been  offered  of  an 
alleged  underflow  of  the  river  as  it  passes  through  the  state  of 
Kansas,  and  it  seems  to  be  the  contention  on  the  part  of  Kansas 
that  beneath  the  surface  there  is,  as  it  were,  a  second  river  with 
the  same  course  as  that  on  the  surface,  but  with  a  distinct  and 
continuous  flow  as  of  a  separate  stream.  We  are  of  the  opinion 
that  the  testimony  does  not  warrant  the  finding  of  such  second 
and  subterranean  stream.  If  the  bed  of  a  stream  is  not  solid 
rock,  but  earth  through  which  water  will  percolate,  and,  as 
alleged  in  plaintiff's  bill,  the  "valley  of  the  river  in  the  state  of 
Kansas  is  composed  of  sand  covered  with  alluvial  soil,"  undoubt- 
edly water  will  be  found  many  feet  below  the  surface,  and  the 
lighter  the  soil  the  more  easily  will  it  find  its  way  downward  and 
the  more  water  will  be  discoverable  by  wells  or  other  modes  of 
exploring  the  subsurface.  Undoubtedly,  too,  in  many  places 
there  may  be  corresponding  to  the  flow  on  the  surface  a  current 
beneath  the  surface,  but  the  presence  of  such  subsurface  water, 
even  though  in  places  of  considerable  amount  and  running  in 
the  same  direction,  is  something  very  different  from  an  inde- 
pendent subsurface  river  flowing  continuously  from  the  Colorado 
line  through  the  state  of  Kansas.  It  is  not  properly  denominated 
a  second  and  subsurface  stream.  It  is  rather  to  be  regarded  as 
merely  the  accumulation  of  water  which  will  always  be  found 
beneath  the  bed  of  any  stream  whose  bottom  is  not  solid  rock. 
Naturally,  the  more  abundant  the  flow  of  the  surface  stream 
and  the  wider  its  channel  the  more  of  this  subsurface  water  there 
will  be.  If  the  entire  volume  of  water  passing  down  the  surface 
was  taken  away  the  subsurface  water  would  gradually  disappear, 
and  in  that  way  the  amount  of  the  flow  in  the  surface  channel 
coming  from  Colorado  into  Kansas  may  affect  the  amount  of 
water  beneath  the  subsurface.  As  subsurface  water,  it  percolates 
on  either  side  as  well  as  moves  along  the  course  of  the  river,  and 
the  more  abundant  the  subsurface  water  the  further  it  will  reach 
in  its  percolations  on  either  side  as  well  as  more  distinct  will  be 
its  movement  down  the  course  of  the  stream.  The  testimony, 
therefore,  given  in  reference  to  this  subsurface  water,  its  amount 
and  its  flow  bears  only  upon  the  question  of  the  diminution  of 


171 

the  How  from  Colorado  into  Kansas  caused  by  the  appropriation 
in  the  former  state  of  the  waters  for  the  purposes  of  irrigation. 

Equally  untenable  is  the  contention  of  Colorado  that  there 
are  really  two  rivers,  one  commencing  in  the  mountains  of  Colo- 
rado and  terminating  at  or  near  the  state  line,  and  the  other 
commencing  at  or  near  the  place  where  the  former  ends,  and 
from  springs  and  branches  starting  a  new  stream  to  flow  onward 
through  Kansas  and  Oklahoma  towards  the  Gulf  of  Mexico. 
From  time  immemorial  the  existence  of  a  single  continuous  river 
has  been  recognized  by  geographers,  explorers  and  travelers.  That 
there  is  a  great  variance  in  the  amount  of  water  flowing  down  the 
channel  at  different  seasons  of  the  year  and  in  different  years 
is  undoubted ;  that  at  times  the  entire  bed  of  the  channel  has  been 
in  places  dry  is  evident  from  the  testimony.  In  that  way  it  may 
be  called  a  broken  river.  But  this  is  a  fact  common  to  all  streams 
having  their  origin  in  a  mountainous  region,  and  whose  volume 
is  largely  affected  by  the  melting  of  the  mountain  snows.  Thus, 
from  one  of  complainant's  exhibits  furnished  by  the  United  States 
Geological  Survey,  the  mean  monthly  flow  at  Canon  City,  at  the 
mouth  of  the  Roya"!  Gorge,  for  the  years  1890,  1895  and  1900  is  as 
follows : 

ARKANSAS  RIVER— CANON  CITY.     MEAN  MONTHLY 
DISCHARGE    IN    SECOND    FEET. 

1890.  1895.  1900. 

January 310  344  a345 

February : 363  361  a353 

March    *. 320  471  0439 

April 477  868  736 

May    2,090  1,506  2,251 

June 2,611  1,900  3,492 

July 1,571  1,413  891 

August '. 670  1,095  273 

September 519  635  211 

October    '     531  505  241 

November    522  499  266 

December  502  444  298 


a  Approximate. 

Doubtless  the  variance  at  different  seasons  of  the  year  is 
more  regular  and  more  pronounced  than  in  those  streams  whose 
sources  are  only  slightly  elevated  and  the  rise  and  fall  of  whose 
waters  is  mainly  owing  to  rains.  Contrasting,  for  instance,  the 
Hudson  with  the  Missouri,  illustrates  this.  When  the  June  flood 
comes  down  the  Missouri  river  it  is  a  mighty  torrent.  One  can  stand 


172 

on  the  bluffs  of  Kansas  Git}*  and  see  an  enormous  volume  of  water, 
extending  in  width  from  two  to  five  miles  to  the  bluffs  on  the 
other  side  of  the  river,  flowing  onward  with  tremendous  velocity 
and  force,  and  yet  at  other  times  the  entire  flow  of  the  Missouri 
river  passes  between  two  piers  of  the  railroad  bridge  across  the 
river  at  that  point.  No  such  difference  between  high  and  low 
water  appears  in  the  Hudson.  In  the  days  when  navigation  west 
of  the  Mississippi  was  largely  by  steamboats  on  the  Missouri 
river,  it  was  familiar  experience  for  the  flat-bottomed  steamboats, 
drawing  but  little  water,  to  be  aground  on  sandbars  and  de- 
tained for  hours  in  efforts  to  cross  them.  Gen.  Doniphan  com- 
manded an  expedition  which  marched  from  Fort  Leavenworth  in 
1846  up  the  Arkansas  valley  and  into  the  territory  of  New 
Mexico.  He  did  not  enter  the  valley  again  until  shortly  before 
his  death  in  1887,  and  when  asked  what  he  recognized  replied 
that  there  were  one  or  two  natural  objects  like  Pawnee  rock 
that  appeared  as  they  did  when  he  marched  up  the  valley;  the 
river  was  the  same,  but  all  else  was  changed,  and  the  valley 
instead  of  being  destitute  of  human  occupation  was  filled  with 
farm  houses  and  farms,  villages  and  cities — something  that  he 
had  never  expected  would  be  seen  in  his  day. 

Summing  up  our  conclusions,  we  are  of  the  opinion  that  the 
contention  of  Colorado  of  two  streams  can  not  be  sustained; 
that  the  appropriation  of  the  waters  of  the  Arkansas  by  Colorado, 
for  purposes  of  irrigation,  has  diminished  the  flow  of  water  into 
the  state  of  Kansas;  that  the  result  of  that  appropriation  has 
been  the  reclamation  of  large  areas  in  Colorado,  transforming 
thousands  of  acres  into  fertile  fields  and  rendering  possible  their 
occupation  and  cultivation  when  otherwise  they  would  have 
continued  barren  and  unoccupied;  that  while  the  influence  of 
such  diminution  has  been  of  perceptible  injury  to  portions  of  the 
Arkansas  valley  in  Kansas,  particularly  those  portions  closest  to 
the  Colorado  line,  yet  to  the  great  body  of  the  valley  it  has 
worked  little,  if  any,  detriment,  and  regarding  the  interests  of 
both  states  and  the  right  of  "each  to  receive  benefit  through  irri- 
gation and  in  any  other  manner  from  the  waters  of  this  stream, 
we  are  not  satisfied  that  Kansas  has  made  out  a  case  entitling  it 
to  a  decree.  At  the  same  time  it  is  obvious  that  if  the  depletion 
of  the  waters  of  the  river  by  Colorado  continues  to  increase  there 
will  come  a  time  when  Kansas  may  justly  say  that  there  is  no 
longer  an  equitable  division  of  benefits  and  may  rightfully  call 
for  relief  against  the  action  of  Colorado,  its  corporations  and 
citizens  in  appropriating  the  waters  of  the  Arkansas  for  irri- 
gation purposes. 

The  decree  which,  therefore,  will  be  entered  will  be  one  dis- 
missing the  petition  of  the  intervenor,  without  prejudice  to  the 


173 

rights  of  the  United  States  to  take  such  action  as  it  shall  deem 
necessary  to  preserve  or  improve  the  navigability  of  the  Arkansas 
river.  The  decree  will  also  dismiss  the  bill  of  the  state  of  Kansas 
as  against  all  the  defendants,  without  prejudice  to  the  right  of 
the  plaintiff  to  institute  new  proceedings  whenever  it  shall  appear 
that  through  a  material  increase  in  the  depletion  of  the  waters  of 
the  Arkansas  by  Colorado,  its  corporations  or  citizens,  the  sub- 
stantial interests  of  Kansas  are  being  injured  to  the  extent  of 
destroying  the  equitable  apportionment  of  benefits  between  the 
two  states  resulting  from  the  flow  of  the  river.  Each  party  will 
pay  its  own  costs. 

In  closing,  we  may  say  that  the  parties  to  this  litigation  have 
approached  the  investigation  of  the  questions  in  the  most  honor- 
able spirit,  seeking  to  present  fully  the  facts  as  they  could  be 
ascertained  from  Avitnesses  and  discussing  the  evidence  and  ques- 
tions of  law  with  marked  research  and  ability. 

Mr.  Justice  Moody  took  no  part  in  the  decision  of  this  case. 

A  true  copy. 

Test:     JAMES  H.  M'KENNEY, 

Clerk  of  the  Supreme  Court  of  the  United  States. 


174 


Supreme  Court  Decisions. 


Right  of  way. — Right  of  purely  private  party  to  condemn 
right  of  way  for  ditch  to  convey  water  to  his  lands  for  domestic, 
mining  or  agricultural  purposes  guaranteed  by  constitution. 
Under  3167  Rev.  Stats.,  p.  861,  Sec.  7,  Art  16  of  the 
Constitution,   "Plaintiffs  were  entitled  to  the  right  of 
way  over  defendants'  lands  for  a  ditch  upon  payment  of 
just  compensation  therefor."     [P.  73. 

Tripp  et  al.  vs.  Overocker  et  al.,  7  Colo.,  1883. 

Eight  of  way. — Compensation  for  injury  to  settler  on  public 
domain. 

The  proviso  of  the  act  of  congress  1866,  §9,  reads  as 
fallows:  "'Provided,  however,  That  whenever,  after  the 
passage  of  this  act,  any  person  or  persons  shall,  in  the 
construction  of  any  ditch  or  canal,  injure  or  damage  the 
possession  of  any  settler  on  the  public  domain,  the  party 
committing  such  injury  or  damage  shall  be  liable  to  the 
party  injured  for  such  injury  or  damage.'  [14  Pub. 
Stats.,  253;  Rev.  Stats,  of  the  U.  S.  (1873-1875),  p.  432, 
§2339."  P.  247. 

Tynon  vs.  Despain,  22  Colo.,  1896. 

Eight  of  way. — Congressional  act  construed  as  granting 
right  of  way — Is  recognition  of  pre-existing  rights  rather  than 
establishment  of  a  new  one. 

In  construing  §9  of  act  of  1866  without  the  proviso 
in  Broder  vs.  Water  Company,  101  U.  S.  274,  Held, 
"  'This  act  was  an  unequivocal  grant  of  the  right  of  way, 
if  it  was  no  more.'  *  *  *  It  was  further  held  that 
this  section  of  the  act  kwas  rather  a  voluntary  recognition 
of  a  pre-existing  right  of  possession,  constituting  a  valid 
claim  to  its  continued  use,  than  the  establishment  of  a 
new  one/  "  [P.  248. 

Tynon  vs.  Despain,  22  Colo.,  1896. 

Eight  of  way. — Condemnation    proceedings — Limitation    as 
to  necessity — Law  constitutional  in  this  respect — Financial  suc- 
cess or  practicability  does  not  enter  into  question  of  necessity. 
"Parties  having  the  constitutional    authority    may 

condemn  lands,  but  it  is  certainly  proper  to  limit  this 

right  to  the  extent  of  their  needs. 


175 

"What  is  proper  to  consider  in  determining  this  ques- 
tion will  vary  according  to  the  circumstances  of  each 
particular  case. 

"Whether  the  enterprise  is  practicable  or  can  be 
made  a  success  financially  does  not  enter  into  the  ques- 
tion of  necessity,  nor  is  it  pertinent  to  inquire  what  peti- 
tioner may  be  able  to  accomplish  in  the  way  of  obtaining 
water  which  can  be  utilized  through  his  proposed  ditch 
and  reservoir  system."  [P.  501. 

Gibson  vs.  Cann,  28  Colo.,  1901. 

Right  of  way. — Questions  to  be  determined  in  condemnation 
proceedings  for  right  of  way. 

"The  questions  here  to  be  determined  are:  First, 
the  necessity  for  the  construction  of  the  ditch;  second, 
the  amount  of  damages."  [P.  522. 

"Appellee  brought  an  action  to  condemn  a  right  of 
way  for  a  ditch  twenty  feet  long,  two  feet  wide  and  one 
foot  deep,  extending  from  the  lower  end  of  a  certain  irri- 
gating ditch  upon  defendant's  premises  to  plaintiff's 
premises."  [P.  520. 

"The  petition  and  proofs  show  the  necessity  for  the 
use  of  water  and  that  there  was  water  being  wasted 
which  petitioner  might  obtain. 

"As  to  whether  or  not  there  is  sufficient  water  for 
plaintiff's  use.  or  as  to  whether  or  not  the  plan  is  a 
practicable  or  feasible  one,  is  a  matter  which  cannot  be 
determined  in  a  proceeding  of  this  character. — Gibson  vs. 
Cann,  28  Colo.,  499."  [P.  522. 

Schneider  vs.  Schneider,  36  Colo.,  1906. 

Eight  of  way. — Condemnation  proceedings — Damages. 

"In  condemnation  proceedings  all  damages,  present 
and  prospective,  that  are  the  natural,  necessary  or  rea- 
sonable incident  of  the  improvement,  must  be  assessed, 
not  including  such  as  may  arise  from  negligent  or  un- 
skillful construction  or  use  thereof."  [P.  434. 

Denver  City  Irr.  &  Water  Co.  vs.  Middaugh,  12 
Colo.,  1889. 

Right  of  way. — Only  private  ditches  subject  to  enlarge- 
ment under  3170-1-2  Kev.  Stats,  of  1908,  p.  862,  §6,  §7  and  §8; 
Mills'  Ann.  Stats.,  Sees.  2261-2-3,  p.  1381. 

"The  ditches  subject  to  enlargement  and  joint  use 
under  the  statute  are  strictly  private  ditches,  and  such 
as  are  used  to  convey  water  across  the  land  of  another 
to  irrigate  the  adjoining  land  of  the  person  or  corpora- 


176 

tion  owning  the  ditch.  This  is  clearly  manifest  by  the 
language  of  the  act,  and  also  from  its  object  and  pur- 
pose/' [P.  196. 

Durango  Ditch  Co.  vs.  Durango,  21  Colo.,  1896. 

Right  of  way.— Under  3172  Rev.  Stats,  1908,  p.  862,  §8; 
Mills'  Ann.  Stats.,  §2263,  p.  1382,  right  of  way  may  be  procured 
by  condemnation  or  contract  for  ditch  not  taking  water  from 
natural  stream. 

»**#     Q^ie  headgate  of  the  feeder  of  the  reservoir 
tapped  the  Larimer  and  Weld  canal  and  not  the  stream 
itself  ***.     Such  a  right  might  be  acquired  by  condemna- 
tion in  a  proper  case  (Mills'  Ann.  Stats.,  sec.  2263;  Gen. 
Stats.,  sec.  1.718)  and,  of  course,  by  contract."  [P.  343. 
Water  Supply  &  Storage  Co.  vs.  Larimer  &  Weld 
Irrigation  Co.  et  al.,  24  Colo.,  1897. 

Right  of  way.— 3165  Rev.  Stats.  1908,  p.  861;  Mills1  Ann. 
Stats.,  sec.  2256,  p.  1361;  Rev.  Stats.,  363,  construed  as  conferring 
right  of  way  to  convey  water  over  lands  of  another  for  purposes 
of  irrigation. 

"A  right  of  way  to  convey  water  over  lands  of  an- 
other for  the  purpose  of  irrigating  one's  land  may  be 
acquired  under  the  statute  (Rev.  Stats.,  363),  and  such 
right  needs  not  a  grant  from  the  owner  of  the  servient 
estate  to  support  it."  [P.  551. 

"It  was  enacted  by  the  first  legislative  assembly 
that  persons  owning  claims  on  the  bank,  margin  or 
neighborhood  of  any  stream,  should  have  the  right  of 
way  over  adjacent  lands  for  the  purposes  of  irrigation 
(Laws  1861,  p.  62),  and  this  law  is  still  in  force." 
[P.  554. 

Yonkers  vs.  Mchols,  1  Colo.,  1872. 
Right  of  way. — Arises  out  of  necessity. 

"It  seems  to  me,  therefore,  the  right  springs  out  of 
the  necessity,  and  existed  before  the  statute  was  en- 
acted, and  would  still  survive  though  the  statute  were  re- 
pealed." [P.  570. 

Yonkers  vs.  Nichols,  1  Colo.,  1872. 

Right  of  way.— 3167  Rev.  Stats.  1908,  p.  861,  §3;  2257  Mills' 
Ann.  Stats.,  p.  1380,  granting  right  of  way  through  other  lands 
modified  by  act  of  1881 ;  Rev.  Stats.,  3170-1-2,  p.  8b2. 

Under  3167  Rev.  Stats,,  the  "servient  estate  could  be 
burdened  with  one  ditch  after  another  until  its  value 
would  be  greatly  reduced  or  perhaps  totally  destroyed, 
with  no  authority  in  the  proprietor  to  prevent  the  same." 
[P.  318. 


177 

Modified  by  act  of  1881,  providing  that  no  land  shall 
ho  burdened  with  more  than  one  ditch.  Shortest  route 
must  be  taken.  Owner  of  ditch  must  permit  others  to 
enlarge. 

Downing  vs.  More,  12  Colo.,  1888. 

Right  of  way. — Owner  of  ditch  must  permit  others  to  en- 
3172  Rev.  Stats.,  1908,  p.  862,  §8;  2263  Mills'  Ann.  Stats., 
loS2 — Unconstitutional  is  so  far  as  it  undertakes  to  limit  or 
regulate  compensation. 

"In  providing  that  the  owner  of  an  existing  ditch 
upon  or  across  his  own  land,  or  the  lands  of  another, 
shall  not  prohibit  or  prevent  a  third  person  from  using 
and  enlarging  the  same,  the  legislative  intention  evi- 
dently was  to  render  more  effective  the  equitable  design 
expressed  by  the  former  section  (§1716).  But  in  so  far 
as  the  latter  undertakes  to  limit  or  direct  the  compen- 
sation to  be  paid  for  the  property,  it  is  clearly  uncon- 
siitutional  and  void.  For  there  are  other  elements  of 
'taking  or  damage'  which  cannot  be  ignored  in  determin- 
ing the  'just  compensation'  required  by  our  constitu- 
tion." [P.  73. 

"A  careful  examination  of  the  entire  act  convinces 
us  that  if  the  objectionable  phrases  \vere  stricken  out, 
a  good  law  would  remain  and  the  purpose  of  the  legisla- 
1  ui-o  would  still  be  accomplished."  This  act  must  be  con- 
sidered in  connection  with  other  statutes  as  well  as 
constitutional  provisions  upon  the  same  subject.  And 
when  so  construed,  omitting  the  objectionable  part,  no 
trouble  will  be  experienced  in  giving  it  full  force  and 
effect.  "The  right  to  enlarge  and  use  the  ditch  of  an- 
other already  constructed  will  be  enforced  in  the  same 
manner,  and  under  the  same  law,  as  the  right  to  take  or 
damage  any  other  kind  of  private  property."  [P.  75. 

"By  the  terms  of  the  constitution  (art.  II,  §15), 
compensation  for  taking  or  damaging  private  property 
against  owners  consent  must  be  ascertained  by  a  jury 
or  board  of  commissioners;  this  requirement  is  impera- 
ti^ve  and  the  legislature  is  powerless  to  dispense  with  it." 
[P.  75. 

Tripp  vs.  Overocker,  7  Colo.,  1883. 

Right  of  way.— Under  3170-1-2  Rev.  Stats.  1908,  p.  862,  §§(>, 
7  and  8;  §§2261-2-3  Mills'  Ann.  Stats.,  p.  1381-2.  Right  to  en- 
large applies  to  through  ditches,  not  to  ditches  constructed  by 
owner  to  water  his  lands  exclusively. 

"It  will  be  noticed  that  in  the  first  section  of  the 

act,  provision  is  made  against  burdening  improved  or 


ITS 

occupied  lands  with  two  or  more  ditches  for  the  purpose 
of  conveying  water  through  such  lands  without  the  own- 
er's consent;  while  by  section  two  the  route  to  be  se- 
lected through  said  lands  is  designated.  The  third  sec- 
tion is  to  give  effect  to  the  first  and  second  sections  by 
prohibiting  a  party  who  has  constructed  a  ditch  to  con- 
vey water  through  such  lands  to  lands  adjoining  or  be- 
yond from  preventing  other  parties  from  enlarging  and 
using  such  ditch  when  necessary  for  the  purpose  of  con- 
veying water  through  the  same  lands."  [P.  319. 

".***  But  a  farmer  in  distributing  water  upon  his 
own  lands  may  have  but  little  regard  to  the  grade  of 
his  small  ditches  or  laterals,  and  the  statute  does  not 
contemplate  the  enlargement  by  others  of  such  ditches, 
and  thus  not  only  burdening  his  lands  with  an  easement, 
but  compelling  him  against  his  Avill  to  accept  such  par- 
ties as  co-tenants  with  him."  [P.  320. 
Downing  vs.  More,  12  Colo.,  1888. 

Right  of  way. — Condemnation  proceedings — Waiver  of  ques- 
tion of  necessity. 

"In  an  action  to  condemn  a  right  of  way  for  an 
irrigating  ditch,  by  -demanding  a  jury  to  ascertain  and 
assess  the  damages  caused  by  the  taking  of  the  land,  and 
by  a  voluntary  trial  of  that  question  before  a  jury  the 
respondent  waived  his  right  to  have  the  preliminary 
question  of  the  necessity  of  taking  the  land  for  the  ditch 
submitted  to  a  commission."  [P.  243. 

Thompson   vs.  Ditch  &  Reservoir  Co.,  25   Colo., 
1898. 

Eight  of  way. — Verified  statement  under  Mills'  Ann.  Stats., 
§§2264-5,  is  not  evidence  of  title,  nor  constructive  notice  of  right 
of  way. 

"The  verified  statement  filed,  hereinbefore  referred 
to,  which  was  introduced  in  evidence  over  the  objection 
of  defendants,  it  is  admitted  was  not  evidence  of  title  to 
the  right  of  way,  and  it  can  not  be  held  to  be  constructive 
notice  to  the  defendant  of  the  existence  of  such  ditch, 
for  the  'reason  that  the  statute  under  which  the  same 
was  filed  had  been  declared  unconstitutional.  Lamar 
Co.  vs.  Lamar  Co.,  26  Colo.,  370;  Great  Plains  Co.  vs. 
Lamar  Co.,  31  Colo.,  96."  [P.  59. 

Blake  vs.  Boye,  38  Colo.,  1906. 

Eight  of  way. — Right  of  way  acquired  under  Rev.  Stats. 
1868,  chap.  18,  §48,  p.  130,  merely  an  easement — Not  a  fee  simple. 


179 

Under  condemnation  proceedings  for  right  of  way 
for  canal,  "We  are  of  the  opinion  that  merely  a  right 
of  way  or  easement  was  acquired."  [P.  494. 

Smith  Canal  or  D.  Co.  vs.  Colo.  Ice  &  Stor.  Co., 
34  Colo.,  1905. 

Right  of  way. — Eight  of  way  becomes  vested  only  upon  com- 
pletion of  work  in  compliance  with  local  customs. 

Under  §9,  act  of  congress  1866,  "It  (right  of  way) 
becomes  vested  only  upon  a  compliance  on  the  part  of 
the  canal  owner  with  the  local  laws,  customs,  etc.,  and 
ownership  is  acquired  as  the  work  progresses,  and  prior- 
ity to  the  water,  as  well  as  the  right  of  way,  becomes 
vested  only  upon  the  completion  of  the  work  of  con- 
struction, and  the  application  of  water  to  a  beneficial 
use."  [P.  314. 

Jarvis  vs.  State  Bank,  22  Colo.,  1896. 

Right  of  Way. — Condemnation  proceedings — Eight  of  pri- 
vate party  to  condemn  artificial  channel  for  natural  stream. 
"The  Constitution  and  statutes  confer  upon  private 
individuals  power  of  eminent  domain  for  the  right  of 
way  for  irrigation  ditches,  but  neither  the  Constitution 
nor  any  statute  authorizes  a  private  individual  to  main- 
tain a  condemnation  suit  for  the  benefit  of  himself  and 
others  similarly  situated,  and  as  trustee  of  the  public  to 
take  lands  belonging  to  still  other  persons  for  an  arti- 
ficial channel  of  a  natural  stream  where  the  natural 
channel  has  been  obstructed  so  as  to  prevent  water  from 
flowing  down  to  the  ditch  of  such  private  individual." 
[P.  100. 

Ortiz  et  al.  vs.  Hansen,  35  Colorado,  1905. 

Appropriation. — Constitution  obliterated  largely  common  law 
doctrine  of  riparian  rights. 

*  The  constitution  has,  to  a  large  extent, 
obliterated  the  common  law  doctrine  of  riparian  rights 
and  substituted  in  lieu  thereof  the  doctrine  of  appro- 
priations." [P.  149. 

Oppenlander  vs.  Left  Hand  Ditch  Co.,  18  Colo., 
1892. 

Appropriation. — Doctrine  of  riparian  rights  not  applicable  to 
Colorado. 

"We  conclude,  then,  that  the  common  law  doctrine 
giving  the  riparian  owner  a,  right  to  the  flow  of  water 
in  its  natural  channel  upon  and  over  his  lands,  even 
though  he  makes  no  beneficial  use  thereof,  is  unapplica- 


180 

ble  to  Colorado.  Imperative  necessity,  unknown  to  the 
countries,  which  gave  it  birth,  compels  the  recognition 
of  another  doctrine  in  conflict  herewith."  [P.  447. 

Coffin  et  al.  vs.  Left  Hand  Ditch  Co.,  6  Colo.,  1882. 
Appropriation.— Existence  of  doctrine  of  appropriation. 

«*     *     *     We  think  the  latter  doctrine  has  existed 

\ 

from  the  date  of  the  earliest  appropriations  of  water 
within  the  boundaries  of  the  state."  [P.  446. 

Coffin  et  al.  vs.  Left  Hand  Ditch  Co.,  6  Colo.,  1882. 

Appropriation. — Act  of   1861,   p.  35,   construed   as  adopting 
common  law  to  extent  it  was  applicable  to  our  conditions. 

"The  adoption  of  the  common  law  by  the  territorial 
legislature  of  1861  was  limited  to  the  extent  that  it  was 
applicable  to  our  conditions.  The  law  of  necessity  ren- 
dered the  common  law  doctrine  of  riparian  rights  wholly 
inapplicable  in  this  jurisdiction,  and  as  has  frequently 
been  stated,  required  its  abrogation;  so  that,  notwith- 
standing the  declaration  of  the  statute,  it  has  never  been 
recognized  as  controlling  in  the  matter  of  water  rights." 
[P.  302. 

Crippen  vs.  White,  28  Colo.,  1901. 

Appropriation. — Eight  of  diversion  and  use  guaranteed  under 
§5,  Art.  XVI  of  the  constitution. 

"Our  constitution  dedicates  all  unappropriated 
water  in  the  natural  streams  of  the  state  'to  the  use  of 
the  people,'  the  ownership  thereof  being  vested  in  'the 
public.'  The  same  instrument  guarantees  in  the  strong- 
est terms  the  right  of  diversion  and  appropriation  for 
beneficial  uses."  [P.  587. 

Wheeler  vs.  Northern  Colo.  I.  Co.,  10  Colo.,  1887. 

Appropriation. — Priorities  only  from  natural  streams  recog- 
nized by  constitution. 

"The  constitution  recognizes  priorities  only  among 
those  taking  water  from  a  natural  stream."  [P.  120. 

F.  H.  L.  C.  &  K.  Co.  vs.  Southworth,  13  Colo.,  1889. 
Priority  under  3177  Rev.  Stats.,  p.  863,  §13 ;  M.  A. 

S.,  2269,  p.  1384. 

"Canon  de  Agua  is  not  a  running  stream,  but  wTater 
comes  entirely  from  rainfall  in  the  surrounding  hills. 
By  use  of  the  water  so  collected,  appellee  could  irrigate 
a  large  portion  of  his  land."  [P.  305. 

"We  think  appropriation  was  a  valid  one  under  2209 
of  Mills'  Ann.  Stats."  [P.  306. 

Denver,  Texas  &  Ft.  Worth  R.  R.  Co.  vs.  Dotson, 
20  Colo.,  1894. 


181 

Appropriation. — First  appropriates  has  prior  right  to  extent 
of  his  appropriation. 

"That  the  first  appropriator  of  the  water  of  a  natural 
stream  has  a  prior  right  to  such  water,  to  the  extent  of 
his  appropriation,  is  a  doctrine  that  we  must  hold  appli- 
cable, in  all  cases,  respecting  the  diversion  of  water  for 
the  purpose  of  irrigation."  [P.  103. 

Schilling  et  al.  vs.  Rominger,  4  Colo.,  1878. 

Appropriation. — What  is  an  appropriation? 

"Appropriation  is  the  intent  to  take,  accompanied 
by  some  open,  physical  demonstration  of  the  intent,  and 
for  some  valuable  use."  [P.  616. 

Larimer  Co.  Res.  Co.  vs.  People,  8  Colo.,  1885. 

Appropriation. — What  constitutes  a  legal  appropriation. 
"To  constitute  a  legal  appropriation,  the  water  must 
be  applied  within  a  reasonable  time  to  some  beneficial 
use ;  that  is,  the  diversion  ripens  into  a  valid  appropria- 
tion only  when  water  is  utilized  by  the  consumer."  [P. 
531. 

Platte  Water  Co.  vs.  Northern  Colo.  I.   Co.,  12 
Colo.,  1889. 

Appropriation. — What  constitutes  a  reasonable  time. 

"What  shall  constitute  such  reasonable  time  is  a 
question  of  fact  depending  upon  the  circumstances  con- 
nected with  each  particular  case."     [P.  154. 
Sieber  vs.  Frink,  7  Colo.,  1883. 

Appropriation. — Application  to  beneficial  use  within  a  rea- 
sonable time. 

"One  of  the  essential  elements  of  a  valid  appropria- 
tion of  water  is  the  application  thereof  to  some  useful 
industry.    To  acquire  a  right  to  water  from  the  date  of 
the  diversion  thereof,  one  must  within  a  reasonable  time 
employ  the  same  in  the  business  for  which  the  appropria-  . 
tion  is  made.    What  shall  constitute  such  reasonable  time 
is  a  question  of  fact  depending  upon  the  circumstances 
connected  with  each  particular  case."     [P.  154. 
Sieber  et  al.  vs.  Frink  et  al..  7  Colo.,  1883. 

Appropriation. — True  test  of. 

"The  true  test  of  appropriation  of  water  is  the  suc- 
cessful application  thereof  to  the  beneficial  use  designed ; 
and  the  method  of  diverting  or  carrying  the  same,  or 
making  such  application,  is  immaterial."     [P.  533. 
Thomas  vs.  Guiraud  et  al.,  6  Colo.,  1883. 


182 

Appropriation. — Doctrine  of  relation. 

"If  the  construction  of  a  ditch  be  prosecuted  with 
reasonable   diligence,   the  right  to  water  therethrough 
relates  back  to  the  commencement  thereof."     [P.  149. 
Sieber  vs.  Frink,  7  Colo.,  1883. 

Appropriation. — Eight  to  use  of  water  for  irrigation  a  prop- 
erty right. 

"The  right  to  the  use  of  water  for  irrigating  pur- 
poses is  a  right  of  property,  the  subject  of  ownership 
like  any  other  property.  Although  the  manner  of  acquir- 
ing the  right  of  property  in  the  use  of  water  is  peculiar 
and  different  from  that  of  other  property,  such  right  to 
use  must  be  determined  like  any  other  property  right 
upon  the  ownership."  [P.  477. 

Cash  vs.  Thornton,  3  Colo.  Appeals,  1893. 

Appropriation. — Property  rights  in  water  consist  in  amount 
and  priority  of  appropriation. 

"Property  rights  in  water  consist  not  alone  in  the 
amount  of  the  appropriation,  but,  also,  in  the  priority 
of  the  appropriation.  It  often  happens  that  the  chief 
value  of  an  appropriation  consists  in  its  priority  over 
other  appropriations  from  the  same  natural  stream." 
[P.  27.  • 

Nichols  vs.  Mclntosh,  19  Colo.,  1893. 

Appropriation. — Water  for  domestic  use  may  be  appropriated 
by  one  not  riparian  owner. 

"The  right  to  water  appropriated  for  domestic  use 
does  not  depend  upon  locus  of  its  use  for  that  purpose, 
but  may  be  diverted  by  one  not  riparian  owner." 
[P.  339. 

Town   of   Sterling  vs.   Pawnee   D.   Ext.   Co.,   94 
Pac.,  1908. 

Appropriation. — Domestic  use  under  §6,  Art.  XVI  of  the  con- 
stitution— Use  that  of  riparian  owner  for  himself,  his  family 
and  his  stock. 

"*  *  *  §6,  Art.  XVI  of  the  constitution  recog- 
nizes a  preference  in  those  using  water  for  domestic 
purposes  over  those  using  it  for  any  other  purpose. 
It  is  not  intended  thereby  to  authorize  a  diversion  of 
water  for  domestic  use  from  the  public  streams  of  the 
state,  by  means  of  large  canals,  as  attempted  in  this 
case. 

"The  use  protected  by  the  constitution  is  such  as 
the  riparian  owner  had  at  common  law  to  take  water 


183 

for  himself,  his  family  or  his  stock,  and  the  like.  And 
if  the  term  'domestic  use'  is  to  be  given  a  different  or 
greater  meaning  than  this,  then  as  between  such  en- 
larged use  and  those  having  jprior  rights  for  agricultural 
and  manufacturing  purposes,  it  is  subject  to  that  other 
constitutional  provision  requiring  just  compensation  to 
those  whose  rights  are  thereby  affected."  [P.  237. 

Canal  Co.  vs.  Loutsenhizer  D.  Co.,  23  Colo.,  1896. 

Appropriation. — Prior  vested  rights  for  irrigation  not  affected 
by  §§5  and  6,  Art.  XVI,  of  the  constitution,  giving  users  for 
domestic  purpose  a  preference. 

do  not  authorize  interference  with  rights 
of  prior  appropriators  for  irrigation  purposes  whose 
rights  vested  before  the  adoption  of  the  constitution,  in 
order  to  supply  later  comers  with  water  for  domestic 
use."  [P.  49. 

Armstrong  vs.  Larimer  Co.  D.  Co.,  1  Colo.  Ap- 
peal, 1891. 

Appropriation. — Status  of  carrier  under  §8,  Art.  XVI  of  the 
constitution — Not  proprietor  of  water  diverted. 

"The  constitution  unquestionably  contemplates  and 
sanctions  the  business  of  transporting  water  for  hire 
from  natural  streams  to  distant  consumers.  The  Colo- 
rado doctrines  of  ownership  and  appropriation  (as  de- 
clared in  the  constitution,  statutes  and  decisions)  give 
the  carrier  of  water  an  exceptional  status,  differing  in 
some  particulars  from  that  of  the  ordinary  common 
carrier.  *  *  For  the  present  it  suffices  to  say  that 
they  (rights  of  carrier)  are  dependent  for  their  birth 
and  continued  existence,  upon  the  use  made  by  the  con- 
sumer. But  giving  these  rights  all  due  significance,  I 
can  not  consent  to  the  proposition  that  the  carrier  be- 
comes a  'proprietor'  of  the  water  diverted."  [P.  588. . 

Wheeler  vs.  Northern  Colo.  I.  Co.,  10  Colo.,  1887. 
Followed  in 

Wyatt  vs.  Irrigation  Co.,  p.  298,  18  Colo.,  1893. 
"Under  the  constitution,  the  , carrier  is  at  least  a 
quasi-public  servant  or  agent.    It  is  not  the  attitude  of  a 
private   individual   contracting  for  sale  or  use  of  his 
private  property."     [P.  589. 

Wheeler  vs.  Northern  Colo.  I.  Co.,  10  Colo.,  1887. 

Appropriation. — Prior  vested  rights  not  affected  by  constitu- 
tion. 


184 

"Our  conclusion,  therefore,  that  the  constitutional 
provisions  (§§5  and  6,  Art.  XVI  of  the  constitution) 
relied  upon  were  not  intended  to  affect  prior  vested 
rights,  but  that  owners  of  such  rights  are  entitled  to 
compensation  therefor  before  the  same  can  be  taken  or 
injuriously  affected." 

«Sac.  73,  Gen.  Stat.,  p.  974;  §0525,  Rev.  Stat.,  subd. 
73,  p.  1519,  is  instructive  as  a  contemporaneous  legis- 
lative interpretation  of  the  constitution.  If  the  rights 
sought  to  be  acquired  did  not  ante-date  the  adoption  of 
the  constitution  'We  are  not  to  be  understood  * 
the  rule  requiring  compensation  to  be  made  when  such 
rights  are  taken  for  a  higher  use  would  be  different.' '! 
[P.  74. 

Strickler  vs.  Colo.  Springs,  16  Colo.,  1891. 

Appropriation. — Protection  of  rights  vested  by  priority  of 
possession  which  were  recognized  by  local  customs,  by  act  of 
congress. 

Act  of  Congress  July  20,  1800,  §9.  "Said  act  of 
congress  provides  for  the  maintenance  and  protection  of 
rights  to  the  use  of  water  which  have  become  vested  by 
priority  of  possession  and  which  are  recognized  and 
acknowledged  by  the  local  customs,  laws  and  decisions 
of  the  courts."  [P.  530. 

Platte  Water  Co.  vs.  North.  Colo.  I.  Co.,  12  Colo., 
1889. 

Appropriation. — Protection  after  patent  by  act  of  congress. 

"July  9,  1870,  congress  passed  an  act  amendatory 
of  the  foregoing  act  of  1800,  in  which,  inter  alia,  it  was 
provided  that  'all  patents  granted,  or  pre-emptions  or 
homesteads  allowed,  shall  be  subject  to  any  vested  and 
accrued  water  rights,  or  rights  to  ditches  and  reservoirs 
used  in  connection  with  such  water  rights,  as  may  have 
been  acquired  under  or  recognized  by  the  ninth  section 
of  the  act  of  which  this  act  is  amendatory.'  Pub.  Stats. 
(1870),  p.  218,  §17;  Rev.  Stats.  U.  S.  (1873-1875),  p.  432, 
§2340."  [P.  247. 

Tynon  vs.  Despain,  22  Colo.,  1890. 

Appropriation. — Legislature  has  power  to  regulate  use  affect- 
ing appropriation. 

"While  the  legislature  cannot  prohibit  the  appro- 
priation or  diversion  of  unappropriated  water  for  useful 
purposes,  from  natural  streams  upon  the  public  domain, 


185 

that  body  has  power  to  regulate  the  manner  of  effecting 
such  appropriation  or  diversion."     [P.  618. 

Larimer  Co.  R.  (  1o.  vs.  People  ex  rel.,  8  Colo.,  1886. 

Appropriation.  —  Use  must  be  truly  beneficial,  not  speculative. 
§8,  Art.  XVI  of  the  Constitution. 

"The  constitution  provides  that  the  water  from 
natural  streams  may  be  diverted  to  beneficial  use;  but 
the  privilege  of  diversion  is  granted  for  uses  truly  bene- 
ficial, not  for  purposes  of  speculation.  This  is  ev* 
dent  from  the  fact  that  provision  is  made  for  establish- 
ing reasonable  rates  to  be  charged  for  the  use  of  water 

by  individuals   or   corporations   furnishing    the    same. 
" 


Combs  vs.  Agricultural  Ditch  Co.,  17  Colo.,  1892. 

Appropriation.  —  Right   of  priority  of  appropriation  not  de- 
pendent upon  locus  of  application. 

"In  the  absence  of  legislation  to  the  contrary,  we 
think  that  the  right  to  water  acquired  by  priority  of 
appropriation  thereof  is  not  in  any  way  dependent  upon 
the  locus  of  its  application  to  the  beneficial  use  de- 
signed." [P.  449. 

Coffin  et  al.  vs.  Left  Hand  D.  Co.,  6  Colo.,  1882. 
Affirmed  in 

Hammond  vs.  Rose,  p.  526;  11  Colo.,  1888. 

Appropriation.  —  Priority  right  protected  as  well  after  patent 
as  when  public  domain. 

"The  right  to  water  in  this  country,  by  priority  of 
appropriation  thereof,  we  think  it  is,  and  has  always 
been,  the  duty  of  the  national  and  state  governments 
to  protect.  The  right  itself,  and  the  obligation  to  pro- 
tec  t  it,  existed  prior  to  legislation  on  the  subject  of  irri- 
gation. It  is  entitled  to  protection  as  well  after  patent 
to  a  third  party  of  the  land  over  which  the  natural 
stream  flows,  as  when  such  land  is  a  part  of  the  public 
domain;  and  it  is  immaterial  whether  or  not  it  be  men- 
tioned in  the  patent  and  expressly^  excluded  from  the 
grant."  [P.  446. 

"And  we  hold  that,  in  the  absence  of  express  stat- 
utes to  the  contrary,  the  first  appropriator.  of  water  from 
a  natural  stream  for  a  beneficial  purpose  has,  with  the 
qualifications  contained  in  the  constitution  a  prior 


186 

right  thereto,  to  the  extent  of  such  appropriation." 
[P.  447. 

Coffin  et  al.  vs.  Left  Hand  Ditch  Co.,  6  Colo.,  1882. 
Affirmed  in 

Hammond  vs.  Rose,  p.  526;  11  Colo.,  1888. 

Appropriation. — Rights  of  appropriators  on  main  stream  not 
subject  to  rights  of  subsequent  appropriators  on  tributary. 

"The  fundamental  principle  of  this  system  is  that 
priority  in  point  of  time  gives  superiority  of  right 
among  appropriators  for  like  beneficial  purposes.  To 
now  say  that  an  appropriator  from  the  main  stream  is 
subject  to  subsequent  appropriation  from  its  tributaries 
would  be  the  overthrow  of  the  entire  doctrine."  [P.  67. 

Strickler  vs.  Colorado  Springs,  16  Colo.,  1891. 
Appropriation. — Extent  of  application  of  above  doctrine. 

"The  rights  of  a  prior  appropriator  from  a  stream 
cannot  be  impaired  by  subsequent  appropriations  of 
water  from  its  tributaries  *  *  *;  and  this  doctrine 
is  applicable  to  the  subsequent  appropriation  of  water 
from  a  tributary  which  enters  the  main  stream  below 
the  point  where  the  prior  appropriator  makes  his  diver- 
sion when  the  result  of  such  appropriation  from  the 
tributary  is  to  require  the  prior  appropriator  to  sur- 
render the  right  to  additional  water  for  the  purpose  of 
supplying  appropriations  senior  to  his  below  the  point 
where  such  tributary  joins  the  main  stream."  [P.  83. 
Platte  Valley  Irr.  Co.  vs.  Buckers  Co.,  25  Colo., 
1898. 

Appropriation. — Rights  of  appropriation  acquired  under  an 
executed  agreement  not  in  writing  are  unaffected  by  statute  of 
frauds. 

"Parties  by  their  joint  acts  may  acquire  common 
rights  to  appropriate  water  for  the  purposes  of  irriga- 
tion unaffected  by  the  statute  of  frauds.  Such  right  is 
not  only  given  by  statute,  but,  in  a  country  with  a 
climate  like  Colorado,  arises  ex  necessitate  rei."  [P. 
100. 

Schilling  et  al.  vs.  Rominger,  4  Colo.,  1878. 

Appropriation.— 3165  Rev.  Stats.,  p.  861,  §1;  act  of  1861,  p. 

67,  does  not  vest  title  to  water  in  owner  of  lands.    Secures  right 

to  divert  for  purpose  of  irrigation. 

"The  act  of  1861  does  not  purport  to  vest  title  to 
water  in  a  stream  in  the  owner  of  lands  thereon.  Its 
object  was  to  secure  to  such  owners  the  right  to  divert 


1ST 

water  for  the  purposes  of  irrigation;  *  *  that  the 
rights  under  this  act,  so  far  as  they  relate  to  irrigation, 
are  limited  to  a  diversion  from  the  stream  for  that  pur- 
pose, and  vest  no  title  to  any  given  quantity  of  wate* 
flowing  therein."  [P.  302. 

Crippen  vs.  White,  28  Colo.,  1901. 

Appropriation. — Use  of  the  surface  drainage  water. 

"Use  of  "the  surface  drainage  water  from  the  irriga- 
tion of  an  adjoining  tract  of  land  does  not  constitute  an 
appropriation  of  such  water,  under  3177  Kev.  Stats.,  p. 
863 ;  Mills'  Ann.  Stats.,  2269;  p.  1384.     [P.  189. 
Burkart  vs.  Merbray,  37  Colo.,  1906. 

Appropriation. — Underflow  subject  to  appropriation — Bur- 
den of  proof. 

"Those  acquainted  with  the  arid  region  know  that 
some  of  the  most  important  and  well-defined  streams 
become  almost,  and  sometimes  entirely,  dry  during  a  por- 
tion of  the  year,  and  that  there  is  at  all  times  what  is 
known  as  the  underflow  ***  and  to  which  rights  by 
appropriation  may  attach.  ***  With  these  physical 
conditions  present,  it  will  be  presumed  that  water  flow- 
ing in  a  natural  channel,  which  reaches  the  banks  of  a 
stream  and  there  disappears  in  the  sands  of  the  bed, 
augments  the  flow  in  the  main  stream  by  percolation, 
until  the  contrary  is  shown,  and  the  burden  of  proof 
is  on  the  party  diverting  such  water  to  establish  that  it 
does  not  mingle  with  the  waters  of  the  main  stream." 
[P.  82. 

Platte  Valley  Irr.  Co.  vs.  Buckers  Co.,  25  Colo., 
1898. 

Appropriation. — The  owner  of  land  including  a  spring  consti- 
tuting a  source  of  supply  for  a  creek  is  not  entitled  to  divert 
waters  of  spring  to  the  injury  of  prior  appropriators. 

"Where  one  of  the  sources  of  the  water  of  a  creek 
is  a  spring,  the  fact  that  the  volume  of  the  water  of  the 
spring  has  been  increased  by  seepage  from  irrigated  lands 
above  does  not  entitle  the  owner  of  the  land  including 
the  spring  to  divert  the  water  of  the  spring  to  the  injury 
of  prior  appropriators  of  water  from  the  creek."  [P.  285. 
Clark  et  al.  vs.  Ashby  et  al.,  34  Colo.,  1905. 

Appropriation.— Under  3177  Rev.  Stats.,  p.  863,  §13;  Mills' 
Ann.  Stats.,  §2269,  p.  1384. — Appropriation  of  seepage  water 
cannot  be  made  after  same  has  reached  the  bed  of  natural  stream 
flowing  through  claimant's  land. 


188 

"Whether  arid  to  what  extent  this  act  is  constitu- 
tional we  decline  to  say  ***."  [P.  108. 

"If  valid  at  all,  it  is  applicable  only  to  appropria- 
tions of  waste,  seepage  and  spring  waters  before  they 
reach  the  channel  or  bed  of  a  natural  stream,  whether 
by  natural  surface  flow,  by  percolation  or  by  being 
artificially  turned  into  the  same.  After  waste  waters 
reach  the  stream,  unless  there  is  then  an  intention  by 
the  owner  to  reclaim  them,  they  become  part  of  its  vol- 
ume, and  insure  to  the  benefit  of  the  appropriates  of  its 
waters,  to  be  enjoyed  in  accordance  with  their  numerical  - 
priorities."  [P.  109. 

La  Jara  C.  &  L.  S.  A.  vs.  Hansen,  35  Colo.,  1905. 

Appropriation. — Passive  acceptance  of  water  flowing  into  a 
canal  does  not  constitute  an  appropriation. 

"***  the  plaintiff  has  not  made  a  valid  appropria- 
tion **H  it  took  no  affirmative  steps  with  that  end  in 
view,  and  its  passive  acceptance  of  waters  that  flowed 
into  its  canal  ***  does  not  constitute  a  valid  appro- 
priation." [P.  490. 

Smith  Canal  vs.  Colo.  Ice  &  Storage  Co.,  34  Colo., 
1905. 


Appropriation. — Water  appropriated  for  non-absorbing  use 
and  discharged  into  stream  after  such  use,  appropriator  making 
no  further  claim  to  it,  is  abandoned  water  ^subject  to  appropria- 
tion. 

Water  appropriated  for  a  non-absorbing  use,  such 
as  power,  and  allowed  to  discharge  after  such  use  into 
the  stream  from  which  it  is  taken,  the  appropriator 
thereafter  making  no  further  claim  to  it,  is  abandoned 
water.  "It  then  became  subject  to  appropriation;  and 
when  once  it  was  appropriated  by  a  ditch  owner  below 
place  of  discharge,  ditch  owners  higher  up  the  stream 
are  not  entitled  to  it,  either  during  temporary  non-use, 
or  after  abandonment,  though  their  priorities  as  to  other 
quantities  of  water,  or  for  other  seasons  of  the  year,  may 
be  prior  in  time."  [P.  170. 

The  Cache  La  Poudre  Reservoir  Co.  vs.  The  Water 

Supply  &  Storage  Co.  et  al.,  25  Colo.,  1898. 
See  Windsor  Res.  &  C.  Co.  vs.  Lake  Supply  Ditch 
Co.,  p.  736.,  98  Pac.,  1908. 

Appropriation. — Water  hoisted  from  a  mine  subject  to  appro- 
priation under  4231  Rev.  Stats.,  p.  1064;  2  Mills'  Ann.  Stats., 
3177,  p.  1806.— Initiation  of  rights. 


189 

"Our  statute  has  made  Such  water  the  subject  of  ap- 
propriation." [P.  133. 

'2  Mills'  Ann.  Stats.,  §3177. 

"Where  it  becomes  necessary  from  time  to  time  to 
construct  new  tunnels,  each  lower  than  the  former,  in 
order  to  drain  mines,  and  a  person '  appropriated  the 
water  obtained  from  the  first  tunnel  for  irrigation  so 
long  as  it  flowed,  and  continued  to  attempt  to  likewise 
utilize  that  from  the  succeeding  tunnels,  such  person's 
appropriation  dates  back  to  the  time  of  the  first  appro- 
priation." [P.  129. 

Ripley  vs.  Park  Center  L.  &  W.  Co.,  40  Colo.,  1907 

Appropriation. — Water  passing  through  sand  and  gravel  con- 
stituting bed  of  stream,  and  lands  adjacent,  not  percolating 
waters  as  defined  by  the  common  law. 

water  passing  through  sand  and  gravel  consti- 
tuting the  bed  of  the  stream  and  the  lands  so  nearly 
adjacent  that  the  only   and  natural    outlet    would  be 
through  such  channel,  are  not  percolating  waters,  as  or 
dinarily  defined  by  the  common  law;  but,   as  already 
stated,  are  a  part  of  the  waters  of  the  stream.'-      [P.  71. 
Buckers   Irr.   Co.   vs.  Farmers   D.   Co.,   31   Colo., 
.     1903. 

Appropriation. — Presumption  as  to  tributary  water  reaching 
main  stream — Burden  of  proof. 

it  is  presumed  that  the  waters  of  a  tributary 
stream,  less  evaporation,  if  not  interfered  with,  will 
reach  main  stream  either  by  surface  or  subterranean 
flow."  [P.  301. 

A  junior  appropriates  on  a  tributary  sought  to  ap- 
propriate water,  claiming  that  the  water  in  such  tribu- 
tary, if  suffered  to  flow,  would  not  reach  headgate  of 
a  senior  appropriator  on  main  stream,  and  hence  its  di- 
version would  not  injure  such  senior  appropriator. 

Held;  Burden  of  proof  was  on  junior  appropriator 
to  show  such  facts. 

Patterson  vs.  Payne,  95  Pac.,  1908. 

Appropriation. — Increase  in  flow  due  to  personal  efforts  and 
expenditures. 

"It  therefore  follows  *  *  *  with  reference  to 
the  stream  from  Beaver  Lake,  that  to  the  extent  of  its 
original  and  natural  flow,  it  was  a  tributary  of  the  river, 
and  *  *  *  the  defendants  were  entitled  to  the  use 
of  the  water  of  this  stream  to  the  extent  that  by  their 


190 

efforts  and  expenditures   they   had   increased   its  aver- 
age, continuous  flow     *     *     *."     [P.  82. 

Platte  Valley  Irr.  Co.  vs.  Buckers  Co.,  25  Colo., 
1898. 

Appropriation. — Increase  water  does  not  mean  surface  or 
subterranean  flow  in  channel — Burden  of  proof. 

"It  is  only  the  actual  increase  resulting  from  the 
addition  of  water  to  a  natural  stream  which  would  not 
otherwise  pass  down  either  its  surface  or  subterranean 
channel,  which  the  law  recognizes  as  an  increase  of  that 
character  which  can  be  diverted  as  against  those  entitled 
to  its  natural  flow."  [P.  70. 

Upon  party  whose  right  is  based  upon  increase  flow 
of  a  natural  stream,  to  clearly  establish  that  they  have 
increased  flow  of  stream.  [P.  70. 

Burkers  Irr.  Co.  vs.  Farmers  Ditch  Co.,  31  Colo.. 
1903. 

Appropriation. — Underflow  is  governed  by  same  rules  of  law 
as  streams  flowing  upon  the  surface — Fact  that  surface  bed  is 
not  visible  does  not  change  rules. 

"The  subterranean  volume  of  water  which  finds  its 
way  through  the  sand  and  gravel  constituting  the  beds 
of  the  streams  which  traverse  the  country  adjacent  to 
the  mountains  of  this  section,  are  recognized  as  a  part 
of  the  waters  of  the  stream  to  the  same  extent  as  though 
flowing  upon  the  surface.  That  the  surface  bed  of  such  a 
stream  may  not  be  visible  does  not  change  the  rule  with 
respect  to  this  class  of  flowing  waters.  Underground  cur- 
rents of  water  which  flow  in  well-defined  and  known 
channels,  the  course  of  which  can  be  distinctly  traced, 
are  governed  by  the  same  rules  of  law  as  streams  flowing 
upon  the  surface."  [P.  326. 

Medano  Ditch  Co.  vs.  Adams,  29  Colo.,  1902. 

Appropriation. — Right  to  enter  stream  to  remove  obstruction. 

"The  appellant  (appropriator)  had  the  right  to  enter 
the  bed  of  the  stream  above  the  ditch  and  to  remove 
sediment  or  obstructions  which  may  have  changed  or  ob- 
structed the  course  of  the  current  so  as  to  prevent  it  from 
entering  his  ditch." 

"The  appropriation  of  the  water  at  the  point  named 
carried  with  it  an  implied  authority  to  do  all  that  should 
become  necessary  to  secure  the  benefit  of  the  appropria- 
tion; to  this  extent  the  appropriator  acquired  an  ease- 
ment in  the  adjoining  lands ;  but  the  right  thus  acquired 


191 

is  one  which  is  held  to  the  narrowest  limits  compatible 
with  the  enjoyment  of  the  principal  easement,  which  is 
the  right  to  the  use  of  the  water/'     [P.  596. 
Crisman  vs.  Heiderer,  5  Colo.,  1881. 

Appropriation. — Joint  filing  and  construction  of  ditch,  but 
separate  application  of  water 'to  individual  property — Not  tenants 
in  common  in  such  water  right. 

A  joint  filing  of  claim  to  water  and  a  joint  building 
of  a  ditch  to  convey  water,  and  at  place  of  application 
water  to  be  divided  one-half  upon  the  separate  indi- 
vidual property  of  each — 

Held :  They  are  not  tenants  in  common  in  the  water 
right,  but  each  had  a  separate  and  several  right  to  one- 
half  the  water  appropriated.  [P.  355. 

City  of  Telluride  vs.  Davis,  33  Colo.,  1905. 

Appropriation. — Change  in  point  of  diversion — Does  not 
affect  original  priority. 

"A  change  in  point  of  diversion  on  the  same  stream 
does  not  affect  the  priority  acquired  by  the  original  ap- 
propriation, provided  the  quantity  of  water  diverted  re- 
mains the  same,  and  no  intervening  appropriator  is  in- 
jured." [P.  149. 

Sieber  vs.  Frink,  7  Colo.,  1883. 

Appropriation. — Map  and  statement  law  so  called,  or  Session 
Laws  1881,  p.  161,  M.  A.  S.,  Sec.  2264— Unconstitutional. 

'•Under  Sec.  12,  Art.  XXV,  of  the  constitution,  Ses 
sions  Laws  of  1881,  p.  161,  M.  A.  S.,  Sec.  2264,  "held  un- 
constitutional. Sec.  2  of  said  laws  is  not  clearly  stated 
in  title  of  said  act.'7  [P.  347. 

Lamar  Canal  Co.  vs.  Amity  D.  &  I.  Co.,  26  Colo., 
1889. 

Appropriation. — Eight  of  carrier"  to  demand  a  bonus  or  roy- 
alty after  tender  of  rate  fixed  by  commissioners. 

"Any  unreasonable  regulations  or  demands  that 
operate  to  withhold  or  prevent  the  exercise  of  this  consti- 
tutional right  by  the  consumer  must  be  held  illegal,  even 
though  there  be  no  express  legislative  declaration  on  the 
subject."  [P.  591. 

Wheeler  vs.  Northern  Colo.  I.  Co.,  10  Colo.,  1887. 

Appropriation. — Effect  of  climatic  conditions  upon  appropri- 
ation. 

"The  appellee's  appropriation  was  of  an  amount  of 
water  necessary  for  the  operation  of  the  machinery  used 


ill  his  mill,  in  wit,   I  Id  miner's  indies  of  water  Mowing  in 

.Mill  <'rerk,  subject   in  .ui\   prior  appropriation  of  such 

waters.     The  fact   Hut    Hie  volume  of  water,  bv   reason  of 
climatic  conditions,  is  sufficient   for  the  use  intended  dm 

ill.U    certain    portions   of    the    \c;ir    o|ll\,    dors    liol.    ol'    ilsi'll'. 

liniil  (lie  appropriation  i'»  such  periods  ol'  lime,  bill  is 
available  whenever,  b\  reason  ol'  Hie  How,  there  is  snlli 
cienl  water  for  snrli  benelicul  use."  |  I*.  ;;.V.. 

City  of  rrrlhn-i<lc  vs.    l>;ivis.  :::i  ('(do.,    HHC,. 

Appropriation. — Tjixjilion,   \\;i!ci    nuins,   pipes  ;ind    livHrjuils 
in    pnld'h-  slnvls  ;irc  nsillv    for  pur|»oscs  of  Inxnlion. 

••Indn-    our    slJilulo,    ^ItSO,    (Jen.    Sl;ils.     ( :.'    Mills' 
Ann.   Shits.,   ^ITS'J  ;  :,:>•! 0    K'rv.  St;ils.,   §\l\,   p.    li'.Mi'i,  :ui<! 
ilTCHjUM'tivc  of  sndi  st;ilnl<\   \\;ilcr  nuins,   piprs  ;n:d   liv 
dr;inls  hiid   in   tli4»  public  sln-Hs  :ind  ;illr\s  of  ,i  cil\,  nnd 

Hir    IlliU  limn  \     i  oiuic.    h'd     I  liri<-\\  il  h    Mild     IK'CCSS;!  I  V     to    l!ir 

o|H'i'jHion    of   ;i    water   works    plaul,   arc    rrallv    for   the 
pni-|K)Sc  of  hi\;il  inn."      |  l\  :;."»•_!. 

0,   l<\  \'    I.  <'«>.   vs.    rncldo   NN'atrr  Co.,    I  I    <'ol<>.   Ap 
penis,    IS!»S. 

Appropriation. — Canal   r.xnnpl    Iroin    taxation    nndVr   >;.'»,   Art. 
ID  nf  Hie  constihitinii. 

"rriiis    provisinn    was   adnph-d    to    rrlirvc   from   scpa 
ral<«    taxation    only    those   canals    \\liicli    arc   cxdnsi\ cly 
usrn1    for   irri^at  in»-   the   lands  o\\  tied    l>\    those   \\lio  <>\\  n 
the  canals,  cither  in  whole  or  in   part."      |  P.  LM!». 

l-mpire   ('anal   ( 'o.    \  s.    Kin   (irande   ( 'o.,  *J  1    ('(do., 
1805. 

Appropriation, — Ta  \a  t  inn. 

"Tin1  fact  still  remains  that  so  lnn»-  as  the  company 
ifl  inlcrcHtc*!  in  the  ditch  witli  water  rights  remainin«;- 
unsold,  it  is  its  purpose  to  make  use  of  the  ditch  as  a 
means  Hirmi^li  which  to  derive  a  profit  from  the  sale 
of  further  water  rights.  The  prn\  isinn  nf  the  consli 
union  upon  which  the  ditch  company  i-elies  \\asadopled 
for  the  sole  benelit  <d'  those  canals  \\hich  are  inclusively 
used  for  irri^atini;  lands  o\\  ned  bv  those  who  own  the 
(anal  in  whole  or  in  part."  |  l\  K'>(>. 

.Mnri-ax    vs.    Mont  rose  ( 'onn  tv,  L'S  ( 'olo.,    I!MH. 

Appropriation. — Technically,  at  common  law  a  water  riyhl  is 
imi    :in    appurtenance. 

"The   ri^ht    to   the   use   of   water   for   irrigation    from 
an  artificial  canal   for  conveviim-  it,  can   not    b(>  regarded 


.'is  appurtenant    lo    UK-    land,    tech  n  ic;i  1 1  y,   not  at  common 
law."       |  I'.  IMS. 

r.loom  vs.  West,  :;  Colo.  Appeals,  1893. 

Appropriation. — <  'onveyances  of  \V;I!«T  rights     Kules  to  deter- 
mine whether  or  nol   a   waler  ri»-hl   passes  MS  ;in  a  ppurlonaneo. 

"A  waler  ri»hl  is  ;i  disiiiirl  subject  of  ^ranl,  and 
may  be  conveyed  separate  and  ;ip;irl  from  Hie  |;m<|  upon 
which  il  is  n!ili/,cd;  Iml,  nevertheless,  whether  :i  deed 
lo  such  hinds  conveys  such  ri^hl  depends  upon  Hie  in 
lenlion  of  Iho  "Tanlor.  In  be  delerniiiied  from  (he  lernis 
of  Hie  deed,  or,  when  NIC  latter  is  silenl  ;is  lo  s;iid  riiihl, 
from  Hie  circumstances  surroiindinii  (he  I  r;insjicf  ion." 

I  r.  iss. 

Arnell  vs.  Linharl,  '2\  Colo.,  is'.i.V 
"  'A  llhonuli  ;i  w:iler  ri<^lil  m;iy  l»e  ;i  ppu  rlenu  nl  to 
hind,  il  is  I  In-  snhjeej  of  |»ropri-|\  :ind  iiiny  b<»  trans- 
ferred eilher  with  or  wilhonl  Ihe  hind/  \\  (>1,  Slrickler 
vs.  Cily  of  Colorado  Springs,  Id  Colo.  I'.eiii"-.  I  here 
fore.  ;i  dislincl  snhjeri  of  tii-;inl,  ;ind  Iriinsfornblc 
eilher  \\ilh  or  willionf  (he  hind,  \\lielher  u  deed  to  land 
convoys  Hie  \v;ilor  ri^lil  depends  upon  (lie  inlonlion  of 
Ihe  n'nmlor,  \\hich  is  lo  l»e  <:;i  I  In-red  from  Ihe  express 
lerms  of  Hie  deed;  or,  \\lien  if  is  silenl  ;is  lo  Ihe  \\;iler 
ri^lil,  from  Ilie  presnnipl  ion  Ui:il  :i  rises  from  (lie  cireinn 
shinces.  ,-ind  wheiher  said  ri^hi  is  or  is  not  incident  to 

and    necessary    lo    Ihe    benelieial    enjoymenl    of    Ihe    land 
and    il    is   now   stare  dooisis   vvilli    us.     .We  are 
satisfied    wilh    il    and   ;i»ain   appro\c   il."      ||».    111*. 

liessemer  I.  I  >.  Co.  vs.  \\oolle\,  :;L'  Colo.,  |<H)1. 

Appropriation. — Con\  oyam-es    of    wnlei-    rights     Slalnle    of 
frauds     (^ueslion  of  statute  purely  personal. 

"The  transfer  of  a  waler  ri^lit,  in  order  to  avoid 
(lie  slatnle  of  frauds,  should  he  in  wrilin^  signed  l>y  Ilin 
parly  making  il;  inn  a  stranger  to  such  an  agreement 
ean  not  object  thai  il  was  not  so  evidenced.  The  ques- 
lion  is  purely  personal  and  can  not  In-  raised  by  those 
who  were  neither  parties  nor  privies  lo  Ihe  agreement." 

1 1*.  <;i. 

Daum  vs.  Conley,  27  Colo.,  1£99. 

Appropriation. — Convi-yance    of    waler    rights     <  'oust  ruction 
of  hahendum  clause  in  deed  of  Irusl. 

"'To  have  and  to  hold  same  *  *  -•  and  all  the 
eslalc,  i-i^hl,  lille.  interest,  claim  or  demand  in  and  to 
I  lie  same,  either  now  or  which  may  hereafter  be  ac- 


194 

quired/  does  not  grant  any  after  acquired  property,  but 
merely  confirms  in  the  grantee  any  title  to  the  prop- 
erty specifically  conveyed  which  grantor  might  after- 
wards acquire.  Such  clause  could  not  operate  to  convey 
a  water  right  afterwards  acquired  and  applied  to  the 
land  conveyed."  [P.  439. 

Bessemer  I.  D.  Co.  vs.  Woolley,  32  Colo.,  1904. 

Appropriation. — Conveyance  of  water  rights — Sheriff's  deed 
under  foreclosure. 

"Where  a  sheriff's  deed  did  not  purport  to  convey 
the  water  right,  and  he  had  the  right  to  levy  thereon, 
but  did  not  do  so,  neither  the  sheriff's  nor  purchaser's 
intention  can  control,  *  *  *  the  water  right  is  not 
conveyed."  [P.  104. 

Cooper  vs.  Shannon,  36  Colo.,  1906. 

Appropriation. — Conveyance  of  water  rights — A  water  right 
used  to  irrigate  lands  may  pass  as  an  appurtenance. 

"A  water  right  which  is  used  in  irrigating  lands 
may  pass  as  a  grant  of  the  lands  themselves  under  word 
'appurtenances,'  if  such  was  the  intention  of  the 
grantor."  [P.  494. 

King  vs.  Ackroyd,  28  Colo.,  1901. 

Appropriation. — Conveyance  of  water  rights — Right  of  pur- 
chaser under  forclosure  sale. 

"Failure  of  trustee  to  secure  a  transfer  of  stock 
in  an  extension  ditch,  used  only  as  a  carrier  of  stock- 
holders' water  in  an  original  ditch,  does  not  give  pur- 
chaser under  foreclosure  a  right  to  have  water  carried 
in  such  extension  ditch,  notwithstanding  a  clause  in 
trust  deed  purporting  to  convey  all  rights  used  as  a 
means  of  conveying  water  to  mortgaged  premises." 
[P.  291. 

Oligarchy  D.  Co.  vs.  Farm  Inv.  Co.,  40  Colo.,  1907. 

Appropriation. — Conveyance  of  water  rights — Conveyance  of 
land  only  does  not  transfer  interest  in  ditch. 

"A  conveyance  of  land  without  mention  of  a  water 
right  can  not  be  taken  to  transfer  an  interest  in  a  ditch, 
although  the  water  carried  may  have  been  used  upon  the 
land. 

"In  this  state  it  is  regarded  as  an  independent 
right,  which  may  be  the  subject  of  sale  and  conveyance, 
but  a  technical  transfer  is  essential  to  vest  in  the  trans- 
feree a  title  to  the  water."  [P.  119. 

Child  vs.  Whitman,  7  Colo.  Appeals,  1895. 


195 

Appropriation. — Conveyance  of  water  rights — Grantee's  ac- 
ceptance of  a  deed  with  reservation  as  to  reservoir  priority — 
Where  such  priority  had  not  been  secured  does  not  estop  gran- 
tee from  claiming  priority  of  its  own  for  such  reservoir. 

"A  grantee's  acceptance  of  a  deed  containing  a 
reservation  to  the  grantor  of  a  priority  or  appropria- 
tion of  water  for  a  certain  reservoir  where  no  priority 
or  appropriation  has  been  secured,  did  not  estop  the 
grantee  to  claim  an  appropriation  of  its  own  for  such 
reservoir.''  [P.  730. 

Windsor  Kes.  &  Canal  Co.  vs.  Lake  Supply  D. 
Co.,  98  Pac.,  1908. 

Appropriation. — Conveyance  of  water  right. 

"Where  a  party  owns  a  half  interest  in  a  certain 
irrigating  ditch,  and  the  water  decreed  to  such  ditch, 
which  he  used  to  irrigate  certain  land,  and  also  owned 
20  inches  of  water  decreed  to  another  ditch  which,  by 
consent  of  the  parties  interested,  he  diverted  through  the 
former  ditch  and  used  in  irrigating  the  same  land,  a 
deed  conveying  said  land,  together  w^ith  one-half  inter- 
est in  the  ditch,  and  'one-half  interest  in  the  water  be- 
longing to  said  ditch,  or  that  is  entitled  to  run  through 
the  same  either  by  decree,  appropriation  or  ownership/ 
conveyed  the  20  inches  of  water."  [P.  112. 

Fluke  et  al.  vs.  Ford,  35  Colorado,  1905. 

Appropriation. — Abandonment — What  constitutes 

"To  constitute  an  abandonment  there  must  be  a 
concurrence  of  an  intention  to  abandon  with  actual 
relinquishment  of  the  property."  [P.  1. 

Kichols  vs.  Lantz,  9  Colo.  Appeals,  1896. 

Appropriation. — Abandonment — Failure  to  use  for  an  unrea- 
sonable time  creates  presumption — Not  conclusive,  however. 

"A  failure  to  use  (water)  for  a  time  is  'competent 
evidence  on  the  question  of  abandonment,  and  if  such 
non-use  be  continued  for  an  unreasonable  period,  it 
may  fairly  create  a  presumption  of  intention  to  aban- 
don; but  the  presumption  is  not  conclusive,  and  may 
be  overcome  by  other  satisfactory  proofs."  [P.  154. 
Sieber  et  al.  vs.  Funk  et  al,  7  Colo.,  1883. 

Appropriation. — Abandonment — Burden  of  proof. 

"It  is  elementary  that  in  claiming  a  right  under 
abandonment,  the  burden  of  proof  is  upon  the  party 
asserting  it,  and  before  it  can  be  sustained,  the  aban- 


IDG 

donment  must  be  shown  by  a  preponderance  of  proof." 
[P.  364. 

Hall  vs.  Lincoln,  10  Colo.  Appeals,  1897. 

Appropriation. — Abandonment  applies  only  to  completed  ap- 
propriations. 

"The  question  presented  in  this  connection  (con- 
ditional decree)  is  not  one  of  abandonment,  as  that 
term  when  employed  in  our  irrigation  law  applies  only 
to  completed  appropriations  of  water,  #nd  there  can  be 
no  abandonment  of  that  which  never  existed."  [P.  306. 
Conley  vs.  Dyer,  95  Pac.,  1908. 

Appropriation. — Abandonment  of  priority — Decree  res  judi- 
cata. 

"The  volume  of  the  priorities  awarded  in  the  ad- 
judication proceedings  must  be  treated  as  res  judicata, 
and  none  of  the  facts  upon  which  that  award  was 
predicated  can  be  inquired  into  for  the  purpose  of  de- 
termining the  question  under  consideration." 

Platte  Valley  Irr.  Co.  vs.  Central  Truot  Co.,  32 
Colo.,  1904. 

Appropriation. — Abandonment     matter     of     intention — Evi- 
dence. 

"Abandonment  is  a  matter  of  intention,  and,  there- 
fore, the  intent  with  which  the  acts  claimed  to  oper- 
ate as  an  abandonment  were  done  is  immaterial." 
[P.  457. 

B.  &  W.  B.  D.  Co.  vs.  L.  C.  D.  &  R.  Co.,  36  Colo., 
1906. 

Appropriation. — Abandonment  of  construction — Eft'eet  of. 

"Upon  abandonment  of  the  construction  of  a  pro- 
posed  canal   without  intention    of    resuming,    all    in- 
cipient rights  lapse  and  revert  to  the  public,  and  are 
not  thereafter  capable  of  being  sold  or  transferred." 
The  Colo.  L.  &  W.  Co.  vs.  The  Kocky  Ford  C., 
R.,  L.,  L.  &  T.  Co.,  3  Colo.  Appeals,  1893. 

Appropriation. — Re-entry  and  prosecution  after  negligence. 

"If,  by  neglect  to  apply  the  water  within  a  proper 
time,  the  right  to  apply  was  forfeited,  the  water  re- 
verted, and  any  one  could  proceed  to  appropriate  and 
apply  it;  but  such  right  could  only  attach  while  the 
right  of  the  former  claimant  was  in  abeyance  by  reason 
of  his  negligence,  and  the  second  party  must  have 
availed  himself  of  the  right  before  the  re-entry  and 


197 

prosecution  of  the  enterprise  by  the  first  party."     [P. 
135. 

The  Beaver  Brook  Res.  &  C.  Co.  vs.  St.  Vrain 
Res.  &  Fish  Co.,  6  Colo.  Appeals,  1893. 

Appropriation. — Abandonment — Evidence  of  non-user  and 
similar  acts  before  rendition  of  decree  is  proper  for  purpose 
of  showing  intention  after  proving  subsequent  abandonment 
by  legal  evidence. 

"Abandonment  as  applied  to  property  rights  con- 
sists of  non-user  and  intention." 

"Though  evidence  of  non-user  and  similar  acts  be- 
fore a  decree  establishing  priorities  to  the  use  of  water 
by  the  owner  of  an  irrigation  ditch  is  improper  for 
the  purpose  of  proving  his  right  to  use  a  less  volume 
of  water  than  that  decreed  to  him,  as  well  as  the 
purpose  of  showing  the  element  of  non-user  in  a  sub- 
sequent abandonment  relied  on  by  another  appropria- 
tor  suing  for  diversion  of  water,  yet  where  there  is 
sufficient  legal  evidence  as  to  the  element  of  non-user 
subsequent  to  the  decree,  evidence  of  non-user  and  sim- 
ilar acts  by  such  owner  before  the  decree  for  the  purpose 
of  showing  his  intent  in  not  using  what  was  awarded  to 
him,  is  proper  and  not  prejudieal."  [P.  1112. 

Alamosa  Creek  Canal   Co.  vs.   Nelson,  93  Pac., 

1908. 
Forwald  vs.  Nelson.     Same  as  above. 

Appropriation. — Abandonment  under  3318  Rev.  Stats,  to 
Right  of  Review. 

See  Peterson  vs.   Durkee,  p.  258,   15  Colo.  Ap- 
peals, 1900. 

Appropriation. — Contracts — Status  of  consumer  under  con- 
tract with  carrier. 

"His  contract  with  the  company    (carrier)    is  not 
the  purchase  of  a  given  volume  of  water,  but  the  pur- 
chase of  the  right  to  use  the  canal  as  a  means  to  con- 
duct a  given  volume,  or  so  much  thereof  as  may  be  nec- 
essary to  irrigate  a  certain  number  of  acres."     [P.  329. 
Wright  vs.  Platte  Val.  Irrigation  Co.,  27  Colo., 
1900. 

Appropriation. — Contracts — Contract  limiting  application  of 
water  to  particular  lands  upheld  under  2283,  Mills'  Ann.  Stats., 
p.  1388;  3239  Rev.  Stats.,  p.  873,  §75. 

"We  are  unable  to  see  wherein  such  limitation  is 

against  public  policy,  or  is  in  any  sense  an  illegal  or  un- 


198 

reasonable  exaction  on  the  part  of  the  ditch  company. 
*  *  *  And  is  directly  in  line  with  the  policy  pre- 
scribed by  the  legislature  upon  this  subject. — Sec.  2283, 
Mills'  Ann.  Stats.,  p.  1388."  [P.  330. 

Wright  vs.  Platte  Val.  Irrigation  Co.,  27  Colo.,  1900. 

Appropriation. — Contracts — Effect  of  contract  upon  priori- 
ties— Waiver. 

Consumer  of  water  under  decree  by  original  con- 
struction may  by  contract  waive  priority  and  be  com- 
pelled to  prorate  with  consumer  using  water  under  de- 
cree for  extension.  [P.  489. 

O'Neil  vs.  Ft.  Lyon  C.  Co.,  39  Colo.,  1907. 

Appropriation. — Contracts — Measure  of  rights,  duties  and 
liabilities  thereunder. 

"To  be  found  in  statutes  of  the  state  and  in  the  con- 
tract, not  in  rules  of  the  company."  [P.  385. 

Downey  vs.  Twin  Lakes  L.  &  W.  Co.,  41  Colo., 
1907. 

Appropriation. — Contracts — Provision  in  water  contract  that 
upon  refusal  of  carrier  to  furnish  water,  consumer  may  do  so,  is 
void. 

A  provision  in  a  water  right  contract  between  a 
ditch  company  and  consumer,  to  the  effect  that  if  a 
ditch  company  should  at  any  time  refuse  to  furnish 
water,  the  consumer  may  take  it  himself,  is  void.  [P. 
191. 

As  being  inconsistent  with  statute  law  of 
this  state."  (An  act  regulating  distribution  of  water, 
1887.)  [P.  196. 

White  vs.  Highline  Canal  Co.,  22  Colo.,  1896. 

Appropriation. — Contracts — Where  the  owner  of  a  reservoir, 
who  also  owns  the  land  upon  which  it  is  situated,  contracts  to 
deliver  to  two  grantees,  each  a  specific  quantity  of  water,  such 
contract  is  the  measure  of  their  rights  unaffected  by  rights  of 
users  from  natural  stream. 

"A  contract  between  the  owners  of  a  reservoir,  who 
are  likewise  owners  in  fee  of  the  land  on  which  the 
same  is  situate,  of  the  one  part,  and  two  grantees  of 
definite  quantities  of  water  to  each,  *  *  *  is  conclu- 
sive of  such  rights  *  *  *  and  can  in  no  manner  be 
affected  by  the  rights  of  user,  which  may  be  acquired  to 
the  waters  of  a  running  stream  under  the  constitution 
and  statutes  of  the  state."  [P.  396. 

Rockwell  vs.  Highland  Ditch  Co.,  1  Colo.  Appeals, 
1892. 


199 

Appropriation. — Contracts — Carrier  under  contract  liable  in 
damages  for  failure  to  deliver  water  due  to  negligence — Vis  major 
only  will  relieve  carrier. 

The  party  contracting  to  supply  it  (water) 
should  not  be  exonerated  from  a  failure  to  perform,  ex- 
cept under  circumstances  clearly  showing  that  the  fail- 
ure wras  chargeable  to  vis  major,  and  not  to  negligence 
and  inattention."  [P.  427. 

Pawnee,  etc.,  Canal  Co.  vs.  Jenkins,  1  Colo.  Ap- 
peals, 1892. 

Appropriation. — Contracts — Failure  of  carrier  to  deliver 
water. 

"Where  the  owner  of  land,  which  was  entitled  to  a 
supply  of  water  through  an  irrigation  ditch,  leased  the 
land,  covenanting  in  the  lease  to  supply  sufficient  water 
for  irrigation,  such  owner  is  the  real  party  in  interest, 
and  entitled  to  sue  for  a  failure  of  the  ditch  owners  to 
deliver  the  water  necessary  for  the  raising  of  crops  on 
the  land,  whereby  the  lessees  were  unable  to  pay  the  stip- 
ulated rent  to  the  owner.  [P.  237. 

Farmers'  H.  L.  Co.  vs.  New  Hamp.  Co.,  40  Colo., 
1907. 

Appropriation. — Contracts — Relation  between  irrigation  com- 
pany and  its  stockholders  that  of  implied  contract. 

"The  relation  between  an  irrigation  corporation  and 
its  members  is  one  of  implied  contract,  from  which  arises 
a  trust  with  which  the  corporation  is  charged  to  conduct 
the  common  business  in  the  interests  of  the  stockholders. 
Each  share  of  stock,  in  respect  to  the  benefits  (in  this 
case  water  for  irrigation)  to  which  it  entitles  its  share- 
holders, is  equal  to  every  other  share."  [P.  30. 

Rocky  Ford  C.  R,  L.  &  L.  Co.  vs.  Sampson,  5  Colo. 
Appeals,  1894. 

Appropriation. — Contracts — Contract  making  stock  in  ditch 
company  do  double  duty  is  void. 

"A  contract  whereby  certain  stockholders  in  a  ditch 
company  sold  their  stock  to  a  reservoir  company,  the 
vendors  to  continue  in  possession  of  their  certificates, 
and  to  divert  water  for  the  use  of  their  land  to  the  same 
extent  theretofore  enjoyed,  and  the  reservoir  company 
to  have  the  right  to  divert  for  storage  and  direct  irriga- 
tion the  difference  between  the  quantity  of  water  ac- 
tually needed  by  the  vendors  and  the  maximum  repre- 
sented by  the  certificates  in  the  priorities  of  the  ditch, 


200 

was  invalid  as  requiring  the  water  rights  evidenced  by 
the  shares  of  stock  to  do  double  duty."     [P.  317. 

Cache  la  Poudre  Irr.  Co,  vs.  Hawley,  95  Pac., 
1908. 

Appropriation. — Contracts — Rule  for  interpretation   of   con- 
tracts— Application. 

"As  a  guide  to  a  correct  interpretation  the  law  per- 
mits the  subject  matter  of  a  contract,  the  situation  of 
the  parties  at  the  time  of  its  execution,  and  all  surround- 
ing facts  and  circumstances  to  be  taken  into  considera- 
tion." [P.  46. 

Plaintiff  granted  canal  company  a  right  of  way  in 
consideration  of  use  of  water  equivalent  to  20  shares 
of  the  capital  stock,  at  time  of  entering  into  contract, 
equivalent  to  3.6  cubic  feet  of  water.  Afterwards  com- 
pany acquired  other  priorities. 

Held:  The  20  shares  did  not  carry  with  it  any  in- 
variable quantity  of  water;  it  carried  only  the  right  to 
3.6  cubic  feet  of  water,  provided  the  prorata  share  of 
water  going  to  20  shares  amounted  to  3.6  cubic  feet, 
and  that  he  had  no  right  to  share  in  priorities  acquired 
after  contract  was  made.  [P.  48. 

True  vs.  Rocky  Ford  C.  R.  &  L.  Co.,  36  Colo., 
1906. 

Appropriation. — Contracts — Rule  for  interpretation   of   con- 
tracts— Application. 

"In  order  to  determine  this  (the  true  intent  and 
meaning  of  the  contract)  the  terms  used  must  be  read 
in  the  light  of  the  circumstances  surrounding  the  par- 
ties at  the  time  of  their  execution,  the  subject  matter 
thereof,  and  the  purposes  and  objects  to  be  accomplished 
thereby."  [P.  309. 

Wyatt  vs.  Larimer  &  Weld  Irr.  Co.,  18  Colo.,  1893. 

"The  controversy  arises  upon  the  meaning  to  be 
given  to  the  words,  'estimated  capacity  to  furnish 
water.7 "  [P.  310. 

"In  the  light  of  the  purpose,  therefore,  to  be  accom- 
plished, we  think  the  words  'estimated  capacity/  limited 
and  modified  as  they  are  (in.  contract)  by  the  words  *to 
furnish,7  must  be  construed  as  meaning  the  ability  of 
the  canal  to  supply  or  deliver  water."  [P.  313. 
Supra. 


201 

Appropriation. — Contracts. 

Status  of  a  company  organized  to  take  title  in  canal 
for  benefit  of  purchasers  of  water  rights  up  to  canal's 
estimated  capacity  in  regard  to  purchaser  of  deed  for  a 
water  right  in  the  canal  after  the  estimated  capacity 
had  been  sold. 

See  Blakely  vs.  Ft.  Lyons  Canal  Co.,  p.  225,  31 
Colo.,  1903. 

Appropriation. — Contracts — Eight  of  carriage  of  water  a  con- 
tinuing easement  under  executed  agreement  to  enlarge. 

A  ditch  company,  in  consideration  of  its  carriage 
of  water,  enlarged  a  ditch,  putting  in  all  necessary  dams, 
flumes  and  headgate  at  its  own- expense — the  two  com- 
panies prorating  maintenance  charges  of  enlarged  ditch 
and  in  common — unrestricted  as  to  time  such  agreement 
should  run. 

Held:  Their  right  is  clearly  an  easement  *  *  * 
not  an  easement  revocable  at  the  pleasure  of  owner  of 
ditch  before  enlargement,  but  a  continuing  one,  of  which 
the  company  enlarging  could  enforce  the  quiet  enjoy- 
ment. [P.  281. 

Chicosa  Irr.  D.  Co.  vs.  El  Moro  D.  Co.,  10  Colo. 
Appeals,  1897. 

Appropriation. — Contracts — A  perpetual  right  to  the  use  of 
water  from  an  irrigating  ditch,  acquired  or  reserved  under  con- 
tract, is  an  easement. 

"A  perpetual  right  to  the  use  of  water  from  an 
irrigating  ditch,  acquired  or  reserved  under  contract, 
constitutes  an  easement  in  the  ditch,  which  cannot  be 
lost  by  non-user  alone,  short  of  the  period  of  limitation 
for  action  to  recover  such  property."  [P.  213. 

People  ex  rel.  Standart  vs.  Canal  Co.,  25  Colo., 
1898. 

Appropriation. — Contract  with  city  or  town  for  water  works. 
See  Grand  Junction  Water  Works  Company  vs. 
City  of  Grand  Junction,  p.  425-14,  Colo.  Ap- 
peals. 

Appropriation. — Contracts — A  perpetual  right  to  have  a  cer- 
tain quantity  of  water  flow  through  an  irrigating  ditch  is  an 
easement  and  a  freehold  estate. 

"A  perpetual  right  to  have  a  certain  quantity  of 
water  flow  through  an  irrigating  ditch  is  an  easement 
in  the  ditch,  an  incorporeal  hereditament  descendible 
by  inheritance,  and  a  freehold  estate."  [P.  298. 


202 

Held:  Supreme  Court  has  jurisdiction  on  appeal 
under  §388,  p.  206,  Code  1887,  in  controversies  involving- 
such  right. 

Wyatt  vs.  Larimer  &  Weld  Irr.  Co.,  18  Colo.,  1893. 

Appropriation, — Contracts — Easement  created  by. 

"The  owners  of  an  irrigation  ditch  and  their  lessees 
in  a  contract  covenanted  jointly  and  severally,  for  them- 
selves, and  each  of  them,  their  successors,  assigns,  etc., 
to  furnish  water  for  the  lands  of  certain  adjoining  land- 
owners, their  heirs,  executors,  administrators,  assigns, 
etc.,  for  a  certain  price.  The  contract  further  provided 
that  the  covenants  on  the  part  of  the  owners  and  the 
lessees  of  the  ditch  touching  the  furnishing  of  the  water 
should  run  with  the  right  of  way  and  ditch  and  with 
the  lands,  forever,  and  be  obligatory  upon  and  in  favor 
of  the  owners  and  proprietors  of  the  ditch  and  lands; 
and  that,  by  virtue  thereof,  the  owners  of  the  land 
should,  at  all  times,  receive  from  the  ditch  all  the  neces- 
sary water  for  the  irrigation  of  the  lands,  any  change 
in  the  ownership,  control  or  management  of  the  ditch 
nptwithstanding.  The  contract  was  duly  recorded. 
Held,  that  such  contract  created  an  easement  and  cove- 
nants running  with  the  land,  binding  upon  the  owners 
of  the  ditch."  [P.  476. 

Farmers'  H.  L.  Co.  vs.  New  Hamp.  Co.,  40  Colo., 
1907. 

Appropriation. — Under  the  constitution  of  the  state  of  Colo- 
rado.—Rev.  Stats.,  1908,  §§3165-3232,  p.  861.— Right  to  use 
stream  bed  as  a  reservoir  site. 

"The  word  'divert'  must  be  interpreted  in  connec- 
tion with  the  word  'appropriations'  and  other  language 
used  in  the  remaining  sections  of  that  instrument  (con- 
stitution) referring  to  the  subject  of  irrigation.  We 
think  there  may  be  a  constitutional  appropriation  of 
water  without  its  being  at  the  instant  taken  from  the 
bed  of  the  stream."  [P.  616. 

Larimer  Co.  R.  Co.  vs.  People  ex.  rel.,  8  Colo.,  1885. 

Use  of  water.-— 3175  Rev.  Stats.  1908,  p.  862,  §11—2267  Mills' 
Ann.  Stats.,  p.  1384. — Prorating  statute  constitutional. 

"All  co-consumers  taking  water  within  a  reason- 
able time  have  priorities  of  even  date  with  each  other." 
[P.  120. 

"There  may,  of  course,  be  secondary  diversions  (to 
which  the  rights  of  secondary  consumers  relate)  through 


203 

subsequent    lawful    enlargements    of    the    quantity    of 
water  legally  taken  in  the  first  instance."    [P.  120. 

"The  word  'co-consumer'  will  *  *  *  be  ap- 
plied exclusively  to  consumers  taking  from  same  arti- 
ficial stream."  [P.  119. 

"The  prorating  statute,  which  we  are  asked  to  de- 
clare unconstitutional,  does  not  take  away  the  con- 
sumer's right  to  water;  it  simply  regulates  the  use  of 
this  right.  The  consumer's  constitutional  rights  must, 
of  course,  be  preserved;  but  it  is  hardly  less  important 
that  the  legislative  authority  to  adopt  regulations  which 
shall  advance  the  wise  purpose  of  the  constitutional 
provision,  and  promote  the  true  interests  of  the  con- 
sumers themselves,  be  maintained."  [P.  129. 

"I  do  not  say  that  under  no  circumstances  can 
any  portion  of  this  provision  be  challenged  as  uncon- 
stitutional, but  I  do  say  that  the  present  arraignment 
thereof  is  unfounded."  [P.  129. 

F.  H.  L.  C.  &  R.  Co.  vs.  Southworth,  13  Colo., 

1889. 

Use  of  water. — Constitutional    limitation    of    operation    of 
prorating  statute. 

"  'The  appropriations  of  water  by  consumers  who 
receive  the  same  through  the  same  ditch  do  hot  neces- 
sarily relate  to  the  same  time;  but,  on  the  contrary,  such 
consumers  may  have  different  priorities  of  right.'  Thus, 
in  effect,  the  prorating  statute,  so-called  (Gen.  Stats., 
1883,  §1722),  was  upon  constitutional  grounds,  limited  in 
its  operation."  [P.  26. 

Nichols  vs.  Mclntosh,  19  Colo.,  1893. 

Use  of  water. — As  to  decree  being  in  violation  of  prorating 
statute  of  1879. 

"It  is  also  claimed  that  the  decree  is  in  violation 
of  the  prorating  statute  of  1879.  We  do  not  so  consider 
it.  It  is  admitted  in  this  case  that  this  ditch  is  entitled 
to  priorities  as  of  date  of  the  original  construction,  and 
by  reason  of  its  several  enlargements.  These  priorities 
are  protected  by  the  constitution,  and  cannot  be  inter- 
fered with  by  legislative  action.  The  most  favorable 
view  that  can  be  taken  of  the  statute  is  that  in  times  of 
scarcity  of  water  it  may  be  resorted  to  to  compel  the 
prorating  of  water  among  consumers  having  priorities  of 
the  same,  or  nearly  the  same,  date.  Farmers'  High  Line 
Canal  &  Eeservoir  Co.  vs.  Southworth,  13  Colo.,  111." 
[P.  491. 

Larimer  &  Weld  Irr.  Co.  vs.  Wyatt,  23  Colo.,  1897. 


204 

Use  of  water. — Appropriators  of  water  through  same  ditch 
may  have  different  priorities,  based  upon  the  time  of  the  several 
appropriations. 

"It  may,  therefore,  be  considered  as  stare  decisis  in 
this  jurisdiction  that  there  may  be  circumstances  in 
which  water  consumers  from  the  same  ditch  may  not  be 
compelled  to  prorate  with  each  other."  [P.  119. 

Farmers'  Highline  Canal  &  Res.   Co.  vs.  White, 
32  Colo.,  1904. 

Use  of  water.— Loan  statute,  3232  Rev.  Stats.,  L.  '99,  p.  236, 
§3;  3  Mills,  §2273c— Constitutional. 

"*  *  *  Such  provision  only  permits  an  exchange 
or  loan  of  water  under  conditions  which  do  not  injuri- 
ously affect  vested  rights  of  other  appropriators,  and 
therefore,  is  not  in  violation  of  section  6,  art.  16,  Colo- 
rado Constitution  *  *  *'."  [P.  247. 

BoAvman  vs.  Virdin,  40  Colo.,  1907. 

Use  of  water. — Construction  of  loan  or  exchange  statute, 
3232  Rev.  Stats.,  1908,  p.  871,  §68;  2273c  3  Mills,  p.  650.— Con- 
fers no  new  right. — Right  under  statute  is  subject  to  the  limita- 
tion that  vested  rights  of  others  be  not  impaired.— Burden  of 
proof  upon  party  asserting  rights  under  statute. 

"*  .*  *  This  section  neither  adds  to,  nor  takes 
from,  any  rights  which  owners  of  ditches  and  water 
rights  had  before  the  act  was  passed.  They 

had  *  *  *  the  right  to  make  a  sale  of  water  rights 
separate  from  the  land  in  connection  with  which  the 
right  was  initiated  and  became  perfected,  and  to  change 
the  point  of  diversion,  place  and  character  of  use;  pro- 
vided, always,  that  in  its  exercise  the  rights  of  others 
are  not  injuriously  affected.  It  would  seem  to  follow 
from  this  that  the  lesser  right  temporarily  to  exchange 
or  loan  water  should  be  attended  with  the  same  results, 
and  be  subject  to  the  same  limitation,  if,  indeed,  it  ex- 
ists in  a  given  case.  *  *  *  The  right  *  *  if 
it  exists  at  all  *  *  *  is  just  as  much  subject  to  the 
qualification  that  the  vested  rights  of  others  are  not  to 
be  impaired  as  in  the  case  of  an  attempted  permanent 
change  in  the  point  of  diversion.  And  when  it  has  been 
made,  though  it  may  be  effected  without  first  obtaining 
a  decree  therefor,  it  is  incumbent  upon  the  party  as- 
serting rights  under  the  loan  or  exchange,  when  chal- 
lenged by  an  action  in  court,  affirmatively  to  show  that 


it  can  be  exercised  without  interfering  with,  or  impair- 
ing, the  rights  of  -others."     [P.  401. 

Fort  Lyon  Canal  Co.  vs.  Chew,  33  Colo.,  1905. 

Use  of  water. — An  action  to  change  point  of  diversion,  ques- 
tion as  to  amount  of  interest,  may  be  determined  in  same  action. 
— Construction  of  transfer  decree  in  time  of  scarcity. 

But  after  the  appropriations  have  been 
determined  and  settled  and  the  owner  of  any  portion 
thereof  desires  to  change  the  point  of  diversion  or  place 
of  use,  of  so  much  of  the  appropriation  as  he  is  entitled 
to,  the  question  as  to  the  amount  of  his  interest  is  mater- 
ial and  must  be  determined  at  the  time  or  before  the 
change  is  permitted.  There  is  no  good  reason  why  this 
may  not  be  determined  in  one  proceeding."  [P.  33. 

"In  the  event  of  the  supply  of  water  becoming  in- 
sufficient to  supply  the  appropriation,  the  decree  per- 
mitting the  transfer  will  be  construed  as  permitting  only 
such  portion  of  the  appropriation  as  the  amount  trans- 
ferred bears  to  the  whole."  [P.  34 

Hallet  vs.  Carpenter,  37  Colo.,  1906. 

Use  of  water.— 3226  Rev.  Stats.,  p.  870,  §62;  acts  of  1899  and 
1903,  S.  L.  '99,  p.  235.;  S.  L.  '03,  p.  278— Not  invalid  as  ex  post 
facto  law. 

"*  *  *  Is  not  invalid  as  ex  post  facto  law,. al- 
though they  may  apply  to  changes  already  made,  as 
these  acts  are  purely  remedial."  [P.  535. 

Ashenfelter  vs.  Carpenter,  37  Colo.,  1906. 

Use  of  water.— Under  act  of  1899,  S.  L.  '99,  p.  235,  a  transfer 
decree  must  first  be  obtained  before  right  of  change  of  point  of 
diversion  will  be  recognized,  notwithstanding  change  was  made 
prior  to  the  passage  of  the  act. 

"We  are,  therefore,  of  the  opinion  that  before  an  ap- 
propriator  can  obtain  a  decree  permitting  a  substantial 
change  in  the  point  of  diversion,  which  he  can  enforce 
against  other  appropriators,  or  require  the  officer  charged 
with  the  duty  of  distributing  water  to  obey,  even  though 
he  made  such  change  before  the  act  of  1899  went  into 
effect,  he  must  proceed  in  the  manner  provided  by  that 
act."  [P.  533. 

New  Cache  la  Poudre  Irr.  Co.  vs.  Arthur  Irr.  Co., 
37  Colo.,  1906. 

Use  of  water. — In  a  proceeding  under  3226  Rev.  Stats., 
merely  right  to  have  change  made  can  be  determined — Right  ap- 


206 

plies  to  shareholder  in  a  mutual  ditch  company — Notice,  where 
published  when  district  extends  into  more  than  one  county. 

"We  are  of  opinion  that  if,  under  the  evidence, 
there  is  any  basis  for  these  contentions  (that  ditch  was 
not  entitled  to  quantity  of  water  which  decree  gave  and 
abandonment  after  rendition  of  decree),  the  statute  un- 
der which  the  present  proceeding  is  being  conducted  did 
not  contemplate  their  determination.  Merely  the  right 
of  the  petitioner  to  have  such  change  made  can  be  deter- 
mined." [P.  61. 

"We  know  of  no  reason  why  discrimination  should 
be  made  against  the  right  claimed  when  the  one  who 
asserts  it  is  under  a  mutual'ditch."  [P.  61. 

The  requirement  that  notice  shall  be  published  in  a 
public  newspaper  "in  such  county"  evidently  refers  to 
the  county  in  which  is  held  the  court  that  has  juris- 
diction to  adjudicate,  the  one  in  which  the  proceeding 
was  properly  instituted.  [P.  66. 

"The  court,  however,  under  its  power  to  make  proper   . 
rules,  might  well  order  publication  to  be  made  in  one 
public  newspaper  in  each  of  the  counties  constituting 
the  district,  and  such  course  is  advisable."     [P.  67. 
Wadsworth  D.  Co.  vs.  Brown,  39  Colo.,  1907. 

Use  of  water. — District  court  has  jurisdiction  to  render  de- 
cree changing  point  of  diversion  from  one  water  district  to  an- 
other. [S.  L.  1899,  chap.  105;  amended  3230  Rev.  Stat.,  p.  871, 
§66. 

"We  may  also  say  here  that  it  is  unfortunate  that 
this  remedial  statute  did  not  contain  a  provision  for 
giving  notice  to  those  outside  the  particular  water  dis- 
trict when  a  change  from  one  district  to  another  is 
sought  and  that  it  lacked  the  specific  directions  for 
giving  effect  to  the  decree  which  the  curative  act  (S.  L. 
1903,  p.  278)  contains.  But  these  omissions  and  defects 
do  not  destroy  the  property  right  of  a  water  right  owner 
to  have  the  point  of  diversion  changed  from  one  water 
district  to  another,  although  it  may  effect  the  conclu- 
siveness  of  the  decree  *  *  *."  [P.  218. 
',  Lower  Lathan  D.  Co.  vs.  Bijou  Irr.  Co.,  41  Colo., 

1907. 

Use  of  water. — Appropriates  for  mining  purposes  may 
change  point,  place  and  character  of  use. 

"We  think   that  the   rule   announced   in   Kidd   vs. 
r     Laird    (15    Cal.,   162-180),   that   in   the   absence   of   in- 


207 

jurious  consequences  to  others,  any  change  which  the 
party  chooses  to  make  is  legal  and  proper. 

"The  right  to  change,  so  limited,  includes  the  point 
of  diversion,  and  place,  and  character  of  use."     [P.  19. 
Fuller  vs.  Swan  River  P.  M.  Co.,  12  Colo.,  1888. 

Use  of  water. — Rule  as  to  change  in  point  of  diversion  ap- 
plies to  agricultural  appropriations. 

"In  Fuller  vs.  Swan  River  Mining  Co.,  12  Colo., 
12,  It  was  there  held  that  one  who  has  the 

right  by  appropriation  to  divert  the  waters  of  a  stream 
may  change  the  place  of  diversion  and  also  the  place  of 
use;  for  although  the  decision  is  based  upon  diversion 
for  mining  purposes,  no  reason  is  perceived  why  the 
rule  in  reference  to  appropriation  for  agricultural  uses 
should  not  be  the  same ;  the  requirement  in  all  cases  be- 
ing that  the  water  diverted  from  the  stream  shall  be 
applied  to  a  beneficial  use."  [P.  68. 

Strickler  vs.  Colo.  Springs,  16  Colo.,  1891. 

Use  of  water. — Change  from  one  agricultural  use  to  an- 
other— Under  certain  limitations,  water  under  priorities  for 
direct  irrigation  may  be  stored  during  the  direct  irrigation 
season  for  a  later  use  in  same  season. 

"If  the  right  to  change  from  agricultural  to  do- 
mestic, and  from  mining  to  agricultural  uses,  and  vice 
versa,  is  legal,  certainly  no  good  reason  can  be  advanced 
why  the  change  from  one  agricultural  use  to  another 
may  not  be  allowed." 

"We  are  of  the  opinion  that  the  appellant  is  entitled 
to  so  utilize  these  priorities;  that  is  to  say,  entitled  to 
store,  during  the  direct  irrigation  season,  the  quantity 
of  water,  measured  by  volume  and  time,  which  it  would 
be  entitled  to  divert  during  that  period  for  the  purpose 
of  direct  irrigation."  [P.  387. 
Upon  petition  for  rehearing,  opinion  states : 

"This  does  not  enlarge  the  use  of  the  priorities  of 
appellant,  either  in  time  or  quantity;  neither  does  it  con- 
fer upon  it  the  right  to  divert  and  store  the  water  rep- 
resented by  its  priorities  every  day  during  the  irriga- 
tion season,  or  to  convert  such  priorities  into  a  storage 
right  during  the  non-irrigating  season,  as  contended  by 
counsel,  but  limits  its  rights  strictly  to  the  diversion  of 
water,  both  as  to  volume  and  time,  to  the  same  quan- 
tity and  the  same  time  we  have  indicated."  [P.  389. 

Seven  Lakes  R.  Co.  vs.  N.  L.  &  G.  I.  &  L.  Co.,  40 
Colo.,  1907. 


208 

Use  of  water.— Act    of    April    1899,    p.    235,    providing    for 

change  of  point  of  diversion,  is  constitutional.     [3226-3231,  p. 

870,  Kev.  Stats.,  supersede  §§1  and  U,  p.  235,  L.  99. 

"This  court  has  held  that  our  so-called  irrigation 
statutes  for  the  ascertainment  of  priorities,  and  placing 
the  distribution  of  water  for  irrigating  purposes  under 
control  of  state  officers,  are  constitutional,  though  they 
affect  rights  which  accrued  before  the  enactments  were 
made,  and  place  upon  their  enjoyment  limitations  from 
which  they  were  theretofore  exempt.  These  statutes 
are  upheld  as  a  rightful  exercise  of  the  police  power  of 
the  state. 

"This  remedial  statute,  therefore,  may  be  upheld 
upon  the  same  principle."  [P.  475. 

Irrigation  Co.  vs.  Water  S.  &  S.  Co.,  29  Colo., 

1902. 
Use  of  water. — Qualification  of  rule  allowing  change  in  point 

of  diversion  applies  to  subsequent  appropriators. 

"*  *  *  General  rule  is  that  an  appropriator  of 
water  for  any  beneficial  purpose  may  change  the  place 
of  diversion  at  his  pleasure,  "provided  the  rights  of  others 
are  not  injuriously  affected.  *  •  *  *  This  qualification, 
moreover,  was  not  by  the  courts  annexed  to  the  right  to 
change  for  the  protection  or  benefit  of  prior  appropri- 
ators. It  is  peculiarly  applicable  to  subsequent 
appropriators,  and  they  are  in  a  position  to  complain 
if  their  rights  are  infringed.  *  *  *  A  subsequent 
appropriator  has  a  vested  right  as  against  his  senior, 
to  insist  upon  the  conditions  that  existed  at  the  time 
he  made  his  appropriation;  and  if  a  change  of  place  of 
diversion  by  a  senior  interferes  with,  or  changes  those 
conditions  to  the  prejudice  of,  a  subsequent  appropri- 
ator, the  latter  m#y  justly  complain."  [P.  518. 

Handy  Ditcli  Co.  vs.  Louden  Canal  Co.,  27  Colo., 

1900. 
Use  of  water. — Priority  to  the  use  of  water  for  agricultural 

purposes  is  a  right  of  property,  and  may  be  transferred  by  sale. 

"We  grant  that  the  water  itself  is  the  property  of 
the  public;  its  use,  however,  is  subject  to  appropriation, 
and  in  this  case  it  is  conceded  that  the  owner  has  the 
paramount  right  to  such  use.  In  our  opinion  this  right 
may  be  transferred  by  sale  so  long  as  the  rights  of 
others,  as  in  this  case,  are  not  injuriously  affected 
thereby.  If  the  priority  to  the  use  of  water  for  agri- 
cultural purposes  is  a  right  of  property,  then  the  right 


209 

to  sell   it  is  as  essential  and  sacred  as  the  right  to 
possess  and  use."     [P.  70. 

Strickler  vs.  Colo.  Springs,  16  Colo.,  1891. 
Use  of  water. — User  of  water — License. 

A  user  of  water  for  irrigation  after  same  has  been 
used  for  placer  purposes,  before  it  returns  to  stream, 
is  a  mere  licensee  as  against  placer  appropriator  (while 
this  action  appears  to  have  been  acquiesced  in  by  the 
then  owners,  there  is  evidence  to  the  effect  that  parties 
so  taking  water  should  never  assert  a  legal  claim  or  right 
thereto,  nor  should  his  use  of  water  interfere  with  the 
use  of  the  placer),  and  acquires  no  right  such  as  would 
sustain  an  injunction  for  pollution  against  such  placer 
appropriator.  [P.  125. 

Fairplay  Hydraulic  &  Mfg.  Co.   vs.  Weston,  29 
Colo.,  1901. 

Use  of  water. — Use  of  surface  drainage  on  adjoining  tracts 
of  land — Appropriator  may  make  further  use  before  it  escapes 
his  control. 

"After  defendants'  appropriation  has  done  duty  to 
their  own  land,  they  can  not,  even  by  grant,  confer 
•  upon  plaintiff  the  right  to  use  it,  or  any  of  it,  as  against 
the  superior  claims  of  other  appropriations  from  the 
same  stream.  By  mere  acquiescence  on  their  part,  to 
plaintiff's  use,  after  waste  water  has  passed  from  their 
lands,  they  have  not  estopped  themselves  thereafter  to 
intercept  and  make  beneficial  use  of  it  before  it  escapes 
from  their  control."  [P.  190. 

Burkart  vs.  Meiberg,  37  Colo.,  1906. 

Use  of  water. — Change  in  place  of  storage  analogous  to 
change  in  place  of  use,  as  far  as  rights  of  appropriators  are 
concerned. 

"Change  of  place  of  storage  or  use  of  water  appro- 
priated for  irrigation  from  one  reservoir  to  another, 
so  far  as  rights  of  appropriators  are  concerned,  is  an- 
alogous to  a  change  of  place  of  use  from  one  tract  of 
land  to  another."  [P.  730. 

Windsor  Res.  &  Canal  Co.  vs.  Lake  Supply  D. 
Co.,  98  Pac.,  1908. 

Use  of  water. — Priority  for  direct  irrigation  cannot  be 
changed  to  that  of  storage. 

"Appellants  seek  to  convert  their  appropriation 
for  immediate  irrigation  into  one  for  storage  purposes. 


210 

and  to  get  for  the  latter  a  priority  which  belongs  to 
them  only  for  the  former  purpose."     [P.  174. 

Finley  vs.  New  Cache  la  Poudre  Irr.  Co.,  98  Pac. 
1908. 

Use  of  water. — Eight  of  town  or  city  to  take  water  for  do- 
mestic use  is  not  superior  to  the  extent  it  may  be  taken  with- 
out compensation  from  a  farming  community  or  individual  who 
has  appropriated  it  for  a  similar  or  other  use.  6525  Kev.  Stats., 
p.  1511,  §13,  subd.  73. 

"Mills'  Annotated  Statutes,  §4403,  subd.  73,  p. 
2295,  authorizing  a  town  to  take  water  from  any  stream 
or  spring  for  domestic  purposes,  and  providing  that, 
when  the  taking  shall  interfere  with  the  vested  rights 
of  any  person,  the  town  shall  first  obtain  his  consent, 
or  acquire  the  right  by  condemnation,  does  not  give  the 
town  a  right  to  divert  water  for  the  use  of  its  inhabit- 
ants superior  to  the  rights  of  an  individual  or  a  farm- 
ing community  to  divert  water  for  domestic  or  other 
purposes,  in  the  sense  that  the  town  may  take  the  wa- 
ter for  that  purpose  from  those  who  have  previously  ap- 
propriated it  for  the  same  or  other  beneficial  use  with- 
out compensation."  [P.  339. 

Town  of  Sterling  vs.  Pawnee  D.  Ext.  Co.,  94  Pac., 

1908. 

Use  of  water. — Domestic  use  incident  to  riparian  ownership 
can  not  be  sold  separate  from  land. 

"The  preference  right  to  use  water  for  domestic 
purposes  incident  to  riparian  ownership  can  not  be  con- 
veyed separate  and  apart  from  the  land,  nor  diverted 
from  such  use  by  a  company  through  a  pipe  line."  [P. 
541. 

Broadmoor  Dairy  &  Live  Stock  Co.  vs.  Brook- . 
side  Water  &  Imp.  Co.,  24  Colo.,  1898. 

Use  of  water. — Appropriation  upon  a  larger  acreage  does 
not  presumptively  establish  an  enlarged  use  of  such  water. 
«*  *  *  rpjje  mere  fac{  that  it  is  the  intention  of 
appellee  to  apply  the  water,  diverted  from  its  original 
headgate  into  the  new  headgate  and  new  ditch,  upon 
a  larger  acreage  does  not  even  presumptively  establish 
that  more  water,  measured  in  time  or  quantity,  will  be 
used  than  was  diverted  through  the  original  headgate, 
nor  will  it  presumptively  establish  injury  to  the  vested 
rights  of  others."  [P.  591. 

Fulton  M.  D.  Co.  vs.  Meadow  Island  D.  Co.,  35 
Colo.,  1906. 


211 

Duties  of  owners. — Must  not  allow  water-  to  escape  to  dam 
age  of  other  property— 3233  Rev.  Stats.,  p.  872,  §69;  2274  Mills' 
Ann.  Stats.,  p.  1386;  3238  Rev.  Stats.,  p.  873,  §74;  2282  Mills' 
Ann.  Stats.,  p.  1388. 

The  above  sections  of  the  statute,  prop- 
erly construed,  impose  upon  the  owners  a  duty,  and 
that  'every  ditch  company  is  required  to  keep  their 
ditch  in  such  good  repair  and  condition  that  the  water 
of  the  same  can  not  readily  and  easily  escape  there-* 
from  to  the  injury  of  any  property;  and  especially  such 
owners  must  not  allow  or  permit  the  water  to  escape 
therefrom  to  the  damage  of  other  property.' "  [P.  553. 
Greeley  Irrigation  Co.  vs.  House,  14  Colo.,  1890. 

Duties  of  owners. — Police  power  of  city  does  not  extend  to 
compelling  ditch  owner  to  flume  in  order  to  prevent  injury  to 
property  along  ditch  line. 

It  is  not  within  the  police  power  of  a  city  to  com- 
pel ditch  owner,  who  has  a  vested  right  to  its  use  and 
enjoyment,  to  confine  and  reconstruct  said  ditch  by  box- 
ing and  fluming  for  purpose  of  preventing  the  wash- 
ing and  cutting  away  of  property  situate  along  ditch 
line,  and  belonging  to  other  parties,  within  corporate 
limits  of  city.  [P.  184. 

Platte  &  Denver  C.  &  M.  Co.  vs.   Lee,  2  Colo. 
Appeals,  1892.      • 

Duties  of  owners. — Duty  to  keep  in  repair. 

"Where  a  ditch  is  enlarged  and  extended  by  a  new 
and  different  set  of  proprietors,  ttye  duty  of  keeping  in 
repair  the  headgate  and  ditch  to  its  original  terminus 
is  upon  both  sets  of  owners,  the  expense  to  be  adjusted 
upon  an  equitable  basis;  but  beyond  this  the  first  set 
of  owners  have  not  interest  and  no  duty."  [P.  511. 

Patterson  vs.   Brown   &  Chapman,   3   Colo.   Ap- 
peals, 1893. 

Duties  of  owners. — Duty  of  ditch  owners  to  furnish  head- 
gates  at  expense  of  consumers,  under  3255  Rev.  Stats.,  p.  876, 
§91;  Mills'  Ann.  Stats.,  2288,  p.  1389. 

"It  is  readily  seen  from  this  section  that  it  is  the 
duty  of  the  ditch  company  to  furnish  headgates  for 
those  having  a  right  to  use  the  water.  The  statute  au- 
thorized the  regulation  of  the  distribution  of  water, 
but  it  does  not  authorize  a  company  to  arbitrarily  re- 
fuse to  deliver  water  at  all  *  *  *."  [P.  392. 

Downey  vs.  Twin  Lakes  L.  &  W.  Co.,  41  Colo., 
1907. 


212 

Duties  of  .owners.— 5829  Rev.  Stats.,  page  1372,  §43;  3962 
Mills'  Ann.  Stats.,  p.  2086,  applies  only  where  ditch  crosses  high- 
way. 

"The  statute  *  *  *  says  that  ditch  companies 
*  *  *  must  keep  highways  open  for  safe  and  conve- 
nient travel;  it  requires  this  to  be  done  only  by  con- 
structing bridges.  The  provision  of  the  statute  only 
becomes  applicable  where  a  ditch  crosses  a  highway,  or 
at  least  encroaches  so  much  upon  it  as  to  interfere  with 
travel.  It  was  never  intended  to  cover  cases  like  this, 
where  the  ditch  and  the  roadway  are  parallel  for  a 
thousand  feet.  *  *  *  Moreover,  the  statute  applies 
only  to  ditches  constructed  after  its  passage."  [P.  29. 
Highline  Canal  Co.  vs.  Westlake,  23  Colo.,  1896. 

Duties  of  owners. — The  act  of  1887,  entitled,  "An  Act  Regu- 
lating the  Distribution  of  Water,  Etc.,"  Rev.  Stats.,  3255-6-7-8, 
p.  876,  §§91-2-3-4 — Declared  to  be  within  police  power  of  the 
state. 

"Although  it  is  difficult  to  define  the  boundaries 
of  the  police  power  of  the  state,  such  regulations  as 
those  prescribed  by  the  statute  under  consideration  are 
by  the  decisions  of  the  highest  courts  declared  to  be 
within  such  power."  [P.  197. 

White  vs.  Highline  Canal  Co.,  22  Colo.,  1896. 

Rate  of  charge  for  water  under  constitution  of  state  of  Colorado 

and  Rev.  Stats.,  1908,  §§3262-3275,  p.  877. 

Defining   power   of   county   commissioners   to   fix  »rates   of 

charge  for  water,  under  §8,  Art.  XVI,  of  the  constitution. 
«*     *     *     Under    the    constitution    they     (county 
commissioners)   cannot  be  vested  with  authority  to  es- 
tablish  the  exact   rate   to   be   charged,   or   to   specify 
either  the  time  or  conditions  of  payment.    The  commis- 
sioners may  be  empowered  to  fix  the  maximum  amount 
of  the  rate;  that  is,  they  may  be  authorized  to  announce 
a  limit  beyond  which  the  carrier  cannot  go."     [P.  593. 
Wheeler  vs.  Northern  Colo.  I.  Co.,  10  Colo.,  1887. 

Rate  of  charge  for  water.— 3262  Rev.  Stats.  1908,  p.  877,  §98; 
2295  Mills'  Ann.  Stats.,  p.  1391— Regulating  charges— Constitu- 
tional. 

"No  fault  is  claimed  from  a  constitutional  point  of 
view  with  the  substance  of  this  legislation;  none  could 
be  found  with  its  purpose.  The  specific  grounds  of  ob- 
jection are,  that  the  title  of  the  act  contains  more  than 
one  subject,  and  that  the  matter  of  fixing  maximum 
rates  is  not  clearly  referred  to  therein."  [P.  147. 


213 

"The  requirement  that  the  subject  'shall  be  clearly 
expressed  in  the  title,'  is  sufficiently  complied  with." 

"It  is  enough  if  the  bill  treats  of  but  one  general 
subject,  and  that  subject  is  expressed  in  the  title." 
[P.  149. 

Golden  Canal  Co.  vs.  Bright,  8  Colo.,  1884. 

Rate  of  charge  for  water. — Limitation  upon  power  of  county 
commissioners  to  fix  rate— 3265  Kev.  Stats.,  1908,  p.  879,  §101; 
2298,  Mills'  Ann.  Stats.,  p.  1394— "Seasonable  compensation"  im- 
plies that  something  must  be  given  for  the  service — Rate  afford- 
ing no  profit  to  ditch  owner  may  be  enjoined. 

"While  the  legislature  attempted  to  confer  upon  the 
county  commissioners  the  power  to  fix  a  reasonable  max- 
imum rate  of  compensation  for  water  to  be  delivered 
from  irrigating  ditches,  this  does  not  give  to  them  the 
authority  to  confiscate  the  property  of  the  ditch  owner; 
neither  does  it  give  them  the  authority  to  compel  the 
ditch  owner  to  carrv  the  water  without  compensation. 
*  *  *."  [P.  175.  ' 

*  If  there  is  no  compensation  to  the  ditch 
owner  at  all,  there  can  scarcely  be  said  to  be  a  reasonable 
compensation.  The  very  term  'reasonable  compensation7 
implies  that  something  must  be  given  for  the  service." 
[P.  172. 

"Where  the  rate  fixed  by  the  board  of  county  com- 
missioners for  the  use  of  water  is  such  that  the  owner  of 
the  ditch  can  make  no  profit  therefrom,  its  enforcement 
may  properly  be  enjoined,  *  *  *."  [P.  167. 

The  Board  of  County  Commissioners  of  Monte- 
zuma  County  vs.  The  Montezuma  Water  and 
•     Land  Co.,  39  Colo.,  1907.' 

Rate  of  charge  for  water. — No  appeal  from  rate  fixed  by 
board  of  county  commissioners. 

"The  irrigation  law  itself  makes  no  provision  for  an 
appeal  from  the  decision  of  the  board  of  county  commis- 
sioners fixing  the  rates  to  be  charged  and  paid  for  wa- 
ter." IP.  152. 

Golden  Canal  Co.  vs.  Bright,  8  Colo.,  1884. 
For  injunctive  relief  see : 

Board  of  County  Commissioners  of  Montezuma 
County  vs.  Montezuma  Water  and  Land  Co., 
39  Colo.,  p.  167. 

Rate  of  charge  for  water.— Under  3264  Rev.  Stats.  1908,  p. 
878,  §100 ;  2297  Mills'  Ann.  Stats.,  p.  1393,  purchaser's  right  not 
limited  by  fact  that  he  can  procure  water  from  another  source. 


214 

"By  this  statute  the  subject  is  governed;  its  provi- 
sions specify  the  conditions  upon  which  the  right  con- 
ferred is  to  be  exercised ;  but  it  makes  no  exception  where 
the  consumer  mentioned  can  procure  the  water  from  some 
other  source;  and  we  must  presume  that  the  legislature 
intended  to  confer  the  privilege  specified  unlimited  by 
any  such  qualifications."  [P.  151. 

Golden  Canal  Co.  vs.  Bright,  8  Colo.,  1884. 

Rate  of  charge  for  water.— Under  3264  Eev.  Stats.  1908,  p. 
878,  §100 ;  2297  Mills'  Ann.  Stats.,  p.  1393— Prior  purchaser  does 
not  have  to  acknowledge  equity  of  all  rules  of  carrier  as  a  condi- 
tion precedent  to  exercise  right  conferred  by  this  statute. 

"Section  1740  of  the  general  statutes  confers  an  af- 
firmative right  upon  the  prior  purchaser,  who  has  com- 
plied with  the  provisions  thereof,  to  continue  his  pur- 
chase of  water,  and  he  cannot  be  required,  as  a  condition 
precedent  to  the  exercise  of  this  right,  to  acknowledge 
the  equity  of  all  the  rules  adopted  by  the  ditch  owner ;  to 
say  that  he  could,  would  be,  in  a  measure,  to  place  him  at 
the  mercy  of  such  proprietor,  for  he  could  thus  be  coerced 
into  compliance  with  the  most  oppressive  and  unjust  reg- 
ulation." [P.  149. 

Golden  Canal  Co.  vs.  Bright,  8  Colo.,  1884. 

Rate  of  charge  for  water.— Under  3264  Kev.  Stats.,  p.  878, 
sec.  100;  Mills'  Ann.  Stats.,  p.  1393,  a  duty  is  imposed  upon 
carrier  to  sell. 

"A  specific  right  is  conferred  upon  relator   (user) 
by  the  same  provision,  in  our  judgment,  a  corresponding 
duty  is  imposed  upon  respondent  (ditch-owner)."    [P.  152. 
,"      Golden  Canal  Co.  vs.  Bright,  8  Colo.,  1884. 

Kates  of  charge  for  water.— Under  3264  Rev.  Stats.,  1908,  p. 
878,  sec.  100,  does  not  repeal  sec.  311  Gen.  Stats.  (992  Rev.  Stats. 
1908,  p.  398,  sec.  148) .  It  is  simply  an  assurance  of  the  right  to 
continue,  under  specified  circumstances,  a  use  already  exercised. 

"It  (1740  Gen.  Stats.)  does  not  operate  to  repeal 
section  311  of  the  General  Statutes  (992  Rev.  Stats.,  p. 
398,  sec.  148)  ;  this  section  expressly  commands  ditch 
companies,  having  water  in  their  canals  not  taken,  to 
furnish  the  same  to  the  class  of  persons  using  it,  in  the 
manner  named  by  the  articles  of  incorporation,  upon 
payment  of  the  established  rate;  the  declaration  therein 
that  this  rate  shall  be  fixed  by  the  county  commissioners 
must  be  taken  with  the  constitutional  condition  attached, 
viz. :  'Where  application  is  made  to  them  by  either  party 


215 

interested.'  *  *  *  Section  1740  does  not  give  him  the 
right  to  water,  even  when  the  maximum  rate  has  been 
fixed  by  the  commissioners." 

"(1740  Gen.  Stats.)  is  simply  an  assurance  of  the 
right  to  continue,  under  specified  circumstances,  a  use 
already  exercised."  [P.  595. 

Wheeler  vs.  Northern  Colo.  I.  Co.,  10  Colo.,  1887. 

Rate  of  charge  for  water. — Act  of  1887,  entitled,  An  Act  to 
Define,  Prohibit,  Punish  and  Restrain  Extortion  and  Other 
Abuses  in  the  Management  of  Ditches,  Canals  and  Reservoirs; 
3271-2-3-4-5,  Rev.  S'tats.,  p.  800-1;  in  no  way  impairs  rights  of 
consumers  under  sec.  1740,  Gen.  Stats.,  1883;  sec.  3264,  Rev. 
Stats.,  p.  878. 

"The  statute  of  1887  is  entitled,  'An  Act  to  Define, 
Prohibit,  Punish  and  Restrain  Extortion  and  Other 
Abuses  in  the  Management  of  Ditches,  Canals  and  Res- 
ervoirs.' It  is  purely  penal  and  makes  it  an  offense 
punishable  by  fine  and  imprisonment  for  any  person  or 
corporation  to  demand  or  accept  any  royalty,  bonus  or 
premium  as  a  condition  precedent  to  the  right  to  pro- 
cure water.  It  declares  such  exactions  illegal,  but  in 
no  way  impairs  the  rights  of  consumers  as  they  existed 
prior,  or  that  accrue  subsequent,  thereto,  under  section 
1740,  Gen.  Stats.,  1883."  [P.  456. 

Northern   Colo.    Irr.   Co.   vs   Richards,   22   Colo., 
1896. 

Rate  of  charge  for  water.— Under  3263  Rev.  Stats.  1908,  p. 
878,  section  99 ;  2296  Mills'  Ann.  Stats.,  p.  1392,  parties  who  have 
never  been  consumers  may  petition  for  the  establishment  of  a 
rate." 

"The  statute  permits  parties  having  land  under 
carrier's  canal,  who  have  never  previously  been  con- 
sumers therefrom,  to  petition  for  the  establishment  of  a 
maximum  water  rate,  ,and  take  advantage  thereof,  if  the 
carrier's  diversion  be  not  exhausted."  [P.  309. 

S.  B.  &  R.  C.  D.  Co.  vs.  Marfell,  15  Colo.,  1890. 

.  Rate  of  charge  for  water. — Refusal  of  carrier   to    sell   upon 
tender  of  rate — Measure  of  damages. 

"We  think  that  upon  the  facts  as  they  appear  in 
evidence  the  proper  criterion  by  which  to  judge  of  plain- 
tiff's damage  under  the  second  cause  of  action  is  the  dif- 
ference between  the  amount  realized  from  the  crops  the 
land  did  produce,  and  the  amount  that  would  have  been 
realized  therefrom  has  the  water  been  furnished,  less 


216 

the  added  cost  of  raising,  harvesting  and  marketing  the 
product ;  the  loss  of  trees  and  the  loss  of  the  use  of  that 
portion  of  the  120  acres  which  plaintiff  was  prevented 
from  cultivating."  [P.  461. 

Northern   Colo.   Irr.   Co.   vs.   Richards,   22   Colo., 
1896. 

Rate  of  charge  for  water. — Proviso  of  act  under  3263  Rev. 
S-tats.  1908,  p.  878,  sec.  99 ;  2296  Mills'  Ann.  Stats.,  p.  1392,  does 
not  contemplate  mere  options,  but  relates  to  definite,  existing 
and  valid  contracts. 

"Our  view  is  that  the  legislative  proviso  in  question 

and  that  of  the  commissioners  as  well,  relate  to  existing, 

definite  and  valid  contracts  binding  upon  both  parties. 

They  do  not  contemplate  mere  options,  such  as  the  one 

before  us     *     *     *."     [P.  308. 

S.  B.  &  R.  C.  D.  Co.  vs.  Marfell,  15  Colo.,  1890. 

Kate  of  charge  for  water,— 3273  Rev.  Stats.  1908,  p.  881, 
sec.  109 ;  2306  Mills'  Ann.  Stats.,  p.  1397.  Penalty  for  refusal  to 
deliver  water. — Prosecution  under. 

•"*  *  *  An  information  which  charges  the  of- 
fense in  the  language  of  the  statute  is  insufficient.  It 
is  necessary  that  the  information  should  show  that  the 
applicant  for  the  water  is  of  the  class  of  persons  entitled 
to  demand  of  and  receive  from  the  ditch  owner  the  water 
upon  compliance  by  him  with  the  terms  of  the  statute, 
and  it  must  designate  the  land  for  which  the  water  was 
demanded  as  being  so  situate  that  it  is  the  duty  of  the 
ditch  to  furnish  water  for  its  irrigation,  and  so  that  the 
ditch  owner  might  ascertain  its  location  and  deliver  the 
water."  [P.  493. 

Schneider  vs.  People,  30  Colo.,  1903. 

Rate  of  charge  for  water. — Assessment — Failure  to  pay- 
Sale  of  stock.  See  Grand  Junction  Irr.  Co.  vs.  Fruita  Imp.  Co. 
[P.  483. 

37  Colo.,  1906. 

Adjudication  of  priorities. — Statutes  adjudicating  priorities 
—Nature  of  police  regulations — Authority  of  legislature  to  enact 
statute. 

"Acts  of  1879  and  1881  are  in  the  nature  of  police 
regulations  to  secure  the  ordinary  distribution  of  water 
for  irrigation  purposes,  and  to  this  end  they  provide  a 
system  of  procedure  for  determining  the  priority  of  rights 
as  between  carriers."  [P.  134. 

"The  authority  of  the  general  assembly  to  enact  laws 
regulating  the  distribution  of  water  to  actual  appro- 


priators,  provided  they  do  not  substantially  affect  consli 
tutional  or  vested  rights,  is  undoubted."    [P.  137. 

F.  H.  L.  C.  &  Res.  Co.  vs.  Southworth,  13  Colo., 

1889. 

Adjudication  of  priorities. — Statutory  proceeding  is  in  the 
nature  of  an  action  in  rem — Reason  of  four  years  statute  of  lim- 
itation. [3313  Rev.  Stats.,  p.  892,  §149. 

"A  conclusive  adjudication  at  a  time  when  the  prac- 
tical application  of  the  proceeding  was  a  matter  of  con- 
jecture might  have  been  disastrous.  To  guard  against 
results  such  as  these,  it  is  not  unreasonable  to  suppose 
that  the  legislature  would  make  some  provision.  And 
we  think  those  portions  of  the  statute  relied  upon  by  the 
district  court  to  overthrow  the  plea  of  res  judicata  and 
to  support  its  jurisdiction  are  clearly  referable  to  an  in-  • 
tent  to  provide  against  the  conclusive  character  of  the 
statutory  proceeding  for  the  period  of  four  years,  but 
in  no  way  to  interfere  with  the  exclusive  jurisdiction  of 
the  court  first  acquiring  jurisdiction,  or  to  be  construed 
as  giving  permission  to  a  party  to  such  an  adjudication 
to  ignore  the  same  and  maintain  an  independent  action 
*."  [P.  113. 

Louden  Canal  Co.  vs.  Handy  Ditch  Co.,  22  Colo., 
1896. 

Adjudication  of  priorities. — Object  of  irrigation  statutes  of 
1879  and  1881  (3276-3290  Rev.  Stats.,  omitting  3280-2  inclusive )  — 
Does  not  confer  new  property  rights — Decree  rendered  thereun- 
der cannot  be  reopened  after  expiration  of  time  limited  by  act  for 
any  material  change. 

"The  object  of  these  irrigation  statutes  was  to  settle 
questions  of  the  relative  priorities  of  the  claimants  of 
water  for  the  purposes  of  irrigation.  The  decrees  ren- 
dered thereunder  do  not  purport  to  grant  any  new  prop- 
erty rights,  but  rather  embody  in  a  permanent  form  the 
evidence  of  those  previously  acquired ;  while  the  statutes 
further  provide  certain  regulations  for  the  distribution 
by  the  state  of  the  water  according  to  the  priorities 
thus  ascertained.  Yet,  after  the  expiration  of  the  time 
limited  by  this  act,  the  decree  cannot  be  reopened  by  a 
party  thereto,  in  the  absence  of  proof  of  fraud,  for  the 
purpose  of  reducing  the  quantity  of  water  therein 
awarded,  or  for  any  other  material  change  or  correc- 
tion." [P.  361. 

New  Mercer  Ditch  Co.  vs.  Armstrong,  21  Colo., 
1895. 


218 

Adjudication  of  priorities. — Who  is  a  party  under  adjudica- 
tion proceedings. 

*  One  is  a  party  to  these  proceedings  who 
has  due  notice  thereof,  or  who  appears  therein,  or  files 
his  statement  of  claim ;  and  the  fact  that  he  does  not  see 
fit  to  offer  proof  in  support  thereof,  or  fails  to  have  his 
rights  adjudicated,  make  him  as  much  a  party  to  the 
proceedings  as  though  he  offered  proofs  and  obtained  a 
decree  for  his  claimed  priority."  [P.  455. 

"It  thus  seems  clear  that  one  who  is  a  party  to  a 
statutory  adjudication  who  appears  in  the  proceeding 
and  files  his  verified  statement  of  claim  but  refuses  to 
offer  proof,  cannot  be  heard  thereafter  to  object,  unless 
within  the  statutory  period  of  two  years  he  applies  for 
•  a  re-argument  or  a  review."  [P.  454. 

Crippen  vs.  X.  Y.  Irr.  D.  Co.,  32  Colo.,  1904. 
Adjudication  of  priorities. — Character  of  testimony. 

"An  arbitrary  standard  by  which  all  cases  are  to 
be  determined  cannot  be  fixed  *  *  *.  On  the  facts 
of  each  case  must  the  appropriate  decree  rest,  governed, 
of  course,  by  those  general  rules  of  weighing  evidence 
and  applying  legal  principles  common  to  all  legal  con- 
troversies." 

Ditch  Co.  vs.  Irrigation  Co.,  25  Colo.,  1898. 

Adjudication  of  priorities. — Decree  limited  to  actual   neces- 
sity. 

"Both  the  law  under  which  this  decree  was  ren- 
dered and  the  decree  itself  contemplate  that  no  claimant 
shall  be  entitled  to  the  use  of  a  quantity  of  water  in 
excess  of  that  actually  needed  for  the  purpose  for  which 
appropriation  was  made."  [P.  362. 

New  Mercer  D.  Co.  vs.  Armstrong,  21  Colo.,  1895. 


ADJUDICATION  OF  PRIORITIES. 


Adjudication  of  priorities. — District  courts  had  jurisdiction 
to  hear  and  determine  water  priorities  under  Sec.  11,  Art.  16, 
of  the  constitution,  and  acts  of  1879  and  1881  do  not  attempt 
to  limit  or  extend  the  jurisdiction. 

"Sec.  11,  Art.  XVI,  of  the  Constitution,  clothed 
with  'original  jurisdiction  of  all  causes,  both  at  law  and 
in  equity,'  and,  therefore,  has  full  and  complete  juris- 
diction to  hear  and  determine  water  priorities.  These 
acts  (irrigation  acts  of  1879  and  1881)  were  passed  for 
the  purpose  of  establishing  a  system  of  procedure 
whereby  the  appropriators  of  water  on  any  particular 


219 

stream  could  have  their  priorities  and  rights  determined 
in  one  proceeding;  and  they  do  not  attempt  to  limit  or 
extend  the  jurisdiction  of  the  district  court  to  such 
rights."  [P.  545. 

Broadmoor  D.  Co.  vs.  Brookside  W.  £  I.  Co.,  24 
Colo.,  1898. 

Adjudication  of  priorities. — Under    33T6  Rev.  Stats.  1908,  p. 

882,  §112;  2399  Mills'  Ann.  Stats.,  p.  1409,  jurisdiction  of  court 

is  exclusive. 

Which  was  the  proper  court  in  which  to 
institute  proceedings  for  that  purpose,  and  *  *  * 
was  the  court  in  which  proceedings  had  been  duly  begun 
(by  order  appointing  referee  to  take  testimony),  and 
were  pending  when  appellee  instituted  this  proceeding 
(for  adjudication  of  a  water  right  in  same  district  but 
another  county),  and  so  its  (court  where  action  was  first 
begun)  jurisdiction  is  exclusive."  [P.  52. 

Presbyterian  College  vs.  Poole,  25  Colo.,  1898. 

Adjudication  of  priorities. — Jurisdiction  not  subject  to  col- 
lateral attack. 

"We  are  of  the  opinion  that  plaintiff  is  not  entitled 
*     to  question  jurisdiction  of  the  district  court 
of  Boulder  county  in  this  collateral  proceeding."      [P. 
337. 

Handy  D.  Co.  vs.  South  Side  D.  Co.,  et  al.,  26 
Colo.,  1899. 

Adjudication  of  priorities. — The  courts  of  this  state  have  no 
jurisdiction  to  award  priorities  to  the  use  of  water  to  a  ditch 
intended  to  water  lands  outside  the  state,  although  the  ditch  has 
its  Jieadgate  within  the  state. 

"The  statutes  under  which  this  proceeding  was  in- 
stituted, those  creating  the  various  water  districts,  and 
our  entire  irrigation  law,  must  be  taken  together,  and, 
if  possible,  the  different  provisions  so  interpreted  as  to 
give  effect  to  all,  and  make  them  harmonious,  the  one 
with  the  other.  It  is  not  to  be  supposed  that  the  state 
was  legislating  for  the  reclamation,  or  irrigation,  of 
lands  beyond  its  boundaries,  or  making  provisions  by 
the  way  of  police  regulations  *  *  over  a  territory 

beyond  its  jurisdiction."     [P.  204. 

Lamson  vs.  Vailes,  27  Colo.,  1900. 

Adjudication  of  priorities. — Acts  of  1879-1881  (3276  Rev. 
Stats.,  §112,  to  3320,  omitting  3280  to  3283)  applies  to  irrigation 
purposes  only. 


"The  irrigation  acts  of  1879  and  1881  were  intended 
as  a  system  of  procedure  for  determining  the  priority 
of  rights  to  the  use  of  water  for  irrigation  between 
owners  of  ditches,  canals  and  reservoirs  taking  water 
from  the  same  natural  stream.  The  proceedings  under 
said  acts  are  purely  statutory  and  cannot  be  resorted 
to  for  the  purposes  of  determining  the  claims  of  parties 
to  the  use  of  water  for  domestic  or  other  purposes  not 
fairly  included  within  the  meaning  of  the  term  'irriga- 
tion.' 

«*  *  *  Qur  legislators  used  the  term  'irrigation' 
in  the  acts  under  consideration  according  to  the  com- 
mon parlance  of  our  people — in  its  special  sense  as  de- 
noting the  application  of  water  to  lands  for  the  raising 
of  agricultural  crops  and  other  products  of  the  soil." 
[P.  529. 

Platte  W.  Co.  vs.  Northern  Colo.  I.  Co.,  12  Colo., 
1889. 

Adjudication  of  priorities. — Was  publication  of  3277  Rev. 
Stats,  necessary  as  condition  precedent  to  vest  jurisdiction  in 
district  courts  adjudicating  priorities  when  notice  undei*  3286 
Kev.  Stats,  had  been  given  and  parties  thereafter  filed  statement 
of  claim?  Held:  Court  had  jurisdiction  of  both  parties  and 
subject  matter. 

"The  evident  purpose  of  the  provision  of  §2  in  re- 
gard to  publication  of  §1  was  to  advise  parties  of  its 
enactment,  that  they  might  protect  their  rights  to  the 
use  of  water  by  filing  statement  of  claim  as  therein 
provided;  but  nothing  therein  indicates  that  a  failure 
to  file  such  statement  should  in  any  way  prejudice  their 
rights  or  preclude  them  from  thereafter  filing  the  same* 
in  any  proceeding  that  might  be  instituted  under  §4  of 
the  act.  It  is  specially  provided  in  §6  that  notice  shall 
be  given  to  all  parties  interested  as  owners  in  any  ditch 
of  the  time  appointed  for  any  hearing  to  appear  in  court 
or  before  the  referee,  at  the  time  so  appointed  and  file 
a  statement  under  oath  in  case  no  statement  had  there- 
tofore been  filed."  [P.  545. 

Broadmoor  D.  &  L.  S.  Co.  vs.  Brookside  Water 
and  Improvement  Co.,  24  Colo.,  1898. 

Adjudication  of  priorities. — District  court  having  obtained 
jurisdiction,  such  jurisdiction  is  exclusive  and  cannot  be  re- 
viewed by  another  district  court  under  Code  action. 

"Where  a  district  court  properly  obtains  jurisdic- 
tion and  proceeds  under  the  statute  to  adjudicate  the 


221 

priorities  of  water  rights  in  a  water  district  and  enters 
a  decree  awarding  priorities,  its  jurisdiction  is  exclu- 
sive, and  as  between  parties  to  such  decree  another 
district  court  has  no  jurisdiction  in  an  ordinary  civil 
action  to  review  such  decree  or  to  pass  upon  questions 
of  priority  to  the  use  of  water  between  the  parties 
thereto  *  *  *."  [P.  521. 

Ditch  &  Res.  Co.  vs.  Irr.  &  Land  Co.,  27  Colo., 
1900. 

Adjudication  of  priorities. — Jurisdiction  of  courts  under  3276 
Rev.  Stats.,  p.  882,  §112.— Acts  of  1879  and  1881— Statutory 
proceedings  to  regulate  priorities  is  not  an  ordinary  civil 
action;  it  is  a  proceeding  sui  generis.  The  acts  provide  for  a 
separate  adjudication  for  each  irrigation  district. 

"In  an  ordinary  civil  action  or  proceeding  where 
the  jurisdiction  of  a  superior  court  of  record  has  at- 
tached, it  will  not  be  divested  by  the  mere  passage  of 
a  legislative  act  changing  district  or  county  bound- 
aries. But  the  statutory  proceeding  to  adjudicate 
priorities  of  right  to  the  use  of  water,  under  the  ir- 
rigation acts  of  1879  and  1881,  is  not  an  ordinary  civil 
action  or  proceeding;  it  is  a  proceeding  sui  generis,  to 
which  the  rules  governing  ordinary  civil  actions  are 
not  always  applicable."  [P.  598. 

"The  irrigation  acts  provide  for  a  separate  adjudi- 
cation of  priorities  for  each  irrigation  district,  but  not 
for  the  settling  of  priorities  beyond  the  limits  of  the 
district.  Act  of  1879,  §§16-19;  act  of  1881,  §§4,  9." 
[P.  599. 

Irrigation  Co.  vs.  Downer,  19  Colo.,  1894. 

Adjudication  of  priorities. — Modification  of  decree  for  error 
of  referee  as  to  wreight  of  testimony. 

"In  an  adjudication  by  a  referee,  under  statute  as 
to  priority  of  water  rights,  the  decree  may  be  'modified 
for  error  of  the  referee  in  his  judgment  upon  the 
weight  of  testimony."  [P.  79. 

Dorr  vs.  Hammond,  7  Colo.,  1883. 

Adjudication  of  priorities. — Capacity  not  determining  ele- 
ment in  adjudicating  priorities.' 

"The  capacity  of  the  several  ditches  enumerated 
in  the  decree  to  convey  water  seems  to  have  been  the 
criterion  by  which  the  court  was  governed."  "A  di- 
version unaccompanied  by  an  application  gives  no 
right.  This  principle  applied  to  the  record  in  this 


case  is  fatal  to  the  decree  rendered    by    the    district 
court."     [P.  3. 

Ft.   Morgan   Land  &   Canal  Co.  vs.    Ditch    Co., 
18  Colo.,  1892. 

Adjudication  of  priorities.- — Question  of  exchange  of  water 
cannot  be  determined  in  adjudication  proceedings  for  storage 
purposes — Error  to  grant  two  reservoir  priorities  to  same  re- 
servoir as  result  of  same  construction. 

"Question  of  exchange  of  water  between  the  same 
or  different  owners  of  reservoirs  can  not  be  determined 
in  a  statutory  action  to  establish  relative  priorities  of 
right  to  store  water  in  reservoir  within  the  district." 

"It  was  error  to  grant  two  separate  reservoir  pri- 
orities of  the  same  capacity  and  date  to  same  reservoir 
as  the  result  of  the  same  construction  and  act  of  stor- 
ing." [P.  730. 

Windsor  Res.  &  C.  Co.  vs.  Lake  Supply  D.  Co., 
98  Pac.,  1908. 

Adjudication  of  priorities. — One  filling  of  reservoir  each  sea- 
son—3284  Rev.  Stats.,  p.  884,  §120;  2403  Mills'  Ann.  Stats.; 
3290  Rev.  Stats.,  p.  886,  §126;  2408  Mills'  Ann.  Stats.— Capacity 
under. 

"A  senior  reservoir  is  entitled  to  but  one  filling 
during  the  same  season  on  the  sanae  priority  before 
junior  reservoirs  are  filled  once." 

"The  term  'capacity'  in  Mills'  Ann.  Stats.,  §2403 
*  *  *  means  not  amount  of  water  needed  by  the 
reservoir  to  irrigate  lands  of  the  owner,  but  the 
amount  the  reservoir  will  hold  when  filled  once." 
[P.  730. 

Windsor  Res.  &  C.  Co.  vs.  Lake  Supply  D.  Co., 
98  Pac.,  1908. 

Adjudication  of  priorities. — Prior  vested  rights  can  not  be 
enlarged  or  changed  to  injury  of  junior  appropriators. 

"An  appropriator  of  water  from  a  stream  already 
partly  appopriated  acquires  a  right  to  the  surplus  or 
residuum  he  appropriates,  and  those  in  whom  prior 
rights  in  the  same  stream .  are  vested,  cannot  extend 
or  enlarge  their  use  of  water  to  his  prejudice,  but  are 
limited  to  their  rights  as  they  existed  when  he  acquired 
his  *  *  *,  because  in  such  case,  each  with  respect 
to  his  particular  appropriation  is  prior  in  time  and  ex- 
clusive in  right."  [P.  49. 


u*  *  *  if  the  evidence  established  that  no  ap- 
propriation had  been  made  by  the  irrigation  company 
for  the  express  purpose  of  storage,  which  antedated 
the  priority  of  plaintiff,  then,  although  the  right  of  the 
irrigation  company  under  the  decree,  to  divert  water 
for  the  purpose  of  irrigation,  may  have  been  prior  to 
that  of  plaintiff,  and  by  that  decree  its  right  for  that 
purpose  conclusively  settled,  it  could  not  thereby  ex- 
ercise that  right  to  the  detriment  of  the  latter  by  an 
enlarged  or  another  use,  measured  by  either  volume  or 
time,  which  would  result  in  depriving  plaintiff  of  its 
appropriation  under  that  decree."  [P.  51. 

Mill.  &  E.  Co.  vs.  Irrigation  Co.,  26  Colo.,  1899. 

Adjudication  of  priorities. — Decree  not  absolute  verity — Does 
not  protect  claimant  from  abandonment. 

"So  that  this  decree  as  to  a  claimant  thereunder — 
no  more  than  does  a  deed  of  conveyance  to  a  grantee 
from  one  unquestionably  the  owner — affords  no  pro- 
tection as  to  the  waters  thus  diverted,  if  they  are  not 
within  a  reasonable  time  applied  to  a  beneficial  use. 
Nor  does  the  decree,  being,  as  is  a  deed,  merely  one 
kind  of  evidence  of  a  right  to  the  thing  owned,  pos- 
sess such  verity  as  to  protect  a  claimant  thereof 
against  the  consequences  of  an  abandonment,  applic- 
able as  well  to  this  class  of  property  obtained  by  ap- 
propriation as  to  other  kinds  of  property  acquired  by 
grant." 

"The  law  of  the  case,  independent  of  the  decree,  is 
to  this  effect,  and  would  be  read  into  the  decree  by 
this  court."  [P.  366. 

New  Mercer  Ditch  Co.  vs.  Armstrong. 

Adjudication  of  priorities. — Authority  of  district  court  to 
give  to  any  ditch  a  fixed  carrying  capacity  before  application 
to  a  beneficial  use. 

"There  may  be  some  uncertainty  as  to  whether, 
under  our  irrigation  statutes,  the  district  court  in  mak- 
ing these  decrees  had  the  authority  to  give  to  any  ditch 
any  fixed  carrying  capacity  before  ,the  water  was  ac- 
tually applied  to  a  beneficial  use;  but  there  scarcely  can 
be  any  serious  contention  that  the  court  had  authority 
to  give  any  definite  decree  in  favor  of  a  ditch  not  then 
completed,  and,  if  such  decrees  were  to  be  entered  now, 
it  is  probable  that  the  courts  would  require  not  only 
that  the  ditch  be  completed,  but  the  water  through 


224    ' 

it  be  actually  applied  to  a  beneficial  use,  before  award- 
ing to  it  any  priority."     [P.  351. 

Water  Co.  vs/Termey,  24  Colo.,  1897. 

Adjudication  of  priorities. — Authority  to  vacate  decree  pend- 
ing determination  of  the  review,  under  3318  Rev.  Stats.,  p. 
893,  §154;  2425  Mills'  Ann.  Stats.,  p.  1420. 

"On  an  application  under  section  2425,  Mills'  Ann. 
Stats.,  for  review  of  a  decree  adjudicating  water  rights, 
the  court  has  authority  to  vacate  the  decree  pending 
the  determination  of  the  review7.  And  where  an  order 
vacating  the  decree  was  entered  and  the  application 
for  review  was  afterwards  dismissed,  the  court  should 
have  re-entered  the  original  decree."  [P.  258. 

Peterson  vs.  Durkee,  15  Colo.  Appeals,  1900. 
Adjudication  of  priorities. — Statutory   proceeding   adjudicat- 
ing priority  rights  does  not  authorize  inquiry  into  relative  rights 
of  .co-claimants  in  same  ditch. 

"The  statute  invests  the  court  with  jurisdiction  to 
establish  the  rank  of  the  several  ditches  with  relation 
to  each  other,  based  upon  the  different  dates  of  ap- 
propriation of  water,  the  quantity  appropriated,  and 
the  means  employed  to  utilize  it;  and  to  award  to  each 
the  priority  to  which  it  may  be  entitled;  but  it  does 
not  authorize  inquiry  into  the  relative  rights  of  co- 
claimants  in  the  same  ditch,  or  any  adjustment  of  their 
disputes  among  themselves."  [P.  441. 

Putnam  vs.  Curtis,  7  Colo.  Appeals,  1896. 

Adjudication  of  priorities.— 3313  Rev.   Stats.,  p.    892,    §149; 

2434  Mills'  Ann.  Stats.,  p.  1422;  3314  Rev.  Stats.,  p.  892,  §150; 

2435  Mills'  Ann.  Stats.,  p.  1423,  applies  to  different  appropria- 
tors  taking  water  from  same  stream  in  different  districts. 

"Ample  provision  is  made  for  protection  of  the 
rights  of  parties  in  the  same  district,  but  none  of  the 
provisions  relating  to  this  class  relate  to  appropriators 
in  different  districts,  as  between  each  other 
For  this  purpose  sections  2434  and  2435  were  enacted. 
Thereby  opportunity  was  afforded  to  adjust  such  rights 
by  an  independent  action,  but  wisely  the  period  within 
which  such  action  could  be  commenced  was  prescribed ; 
otherwise,  rights  as  between  appropriators  of  water 
in  different  districts  where  rights  have  been  adjudi- 
cated, under  the  statutory  proceedings,  would  remain 
unsettled  indefinitely."  [P.  338. 

Ft.  Lyon  C.  Co.  vs.  Ark.  V.  S.  B.  &  I.  L.  Co.,  39 
Colo.,  1907. 


Adjudication  of  priorities. — A  decree  embraces  rights  of  both 
consumers  and  carriers  and  operates  as  an  estoppel  upon  con- 
sumers in  establishing  their  separate  rights 

"The  decree  embodies  the  rights,  not  only  of  car- 
rier, whatever  they  may  be,  but  also  the  rights  of  its 
consumers.  By  the  former  decree  it  is  determined  that 
the  priority  of  defendant  company  is  superior  to  that 
of  (plaintiff)  and  that  decree  is  binding  not  only  upon 
both  of  those  companies  as  carriers,  but  upon  con- 
sumers of  water  under  their  ditches."  [P.  431. 

Combs  vs.  Farmers  H.  L.  .0.  &  R.  Co.,  38  Colo., 
1906. 

Adjudication  of  priorities. — An  action  requesting  modifica- 
tion of  decree  not  proper  action  for  the  purpose  of  determining  re- 
spective rights  of  parties  therein. 

"The  rights,  if  any,  which  plaintiff  here  asserts, 
must  be  determined  in  an  appropriate  action  brought 
for  that  purpose,  and  not  in  a  proceeding  to  amend  or 
modify  a  former  decree  that  in  no  way  affects  their  sep- 
arate and  individual  interests  in  priorities  expressly 
decreed  to  the  ditches  as  such."  [P.  95. 
Evans  vs.  Swan,  38  Colo.,  1906. 

Adjudication  of  priorities. — Court  has  powTer  of  determining 
date  of  priority  of  uncompleted  canal. 

"We  have  decided  that  in  these  special  proceedings 
the  court  is  without  authority  to  award  to  a  ditch  or 
canal  in  advance  of  its  completion  any  definite  quan- 
tity of  water.  (Water  Co.  vs.  Tenney,  24  Colo.,  344, 
352.)  But  we  have  not  decided  that  it  is  wrong  for  the 
court  to  fix  the  date  of  the  priority  of  a  canal  begun, 
but  not  completed,  at  the  time  the  decree  is  rendered. 
This  is  precisely  what  wras  done  under  the  decrees  we 
are  .considering;  and  we  see  no  objection  to  it  from  a 
jurisdictional  standpoint."  [P.  277. 

Waterman  vs.  Hughes,  33  Colo.,  1905. 

Adjudication  of  priorities. — Priorities  and  rights  established 
by  Mills'  Ann,  Stats.,  §2264,  Session  Laws  1881  (map  and  state- 
ment law),  are  protected. — Future  rights  and  those  undergoing 
adjudication,  how  determined. 

"Rights,  if  any,  which  have  become  vested;  priori- 
ties, if  any,  which  have  been  established  by  decree  of 
court  upon  the  basis  of  this  act  and  by  the  lapse  of 
time  cannot  be  reviewed,  are  certainly  protected."  [P. 
377. 


220 

"Other  rights,  if  any,  which  have  been  settled  by 
judicial  decree,  but  not  so  as  to  be  beyond  the  reach 
of  review,  or  such  as  are  now  in  process  of  adjudica- 
tion, will  be  determined  in  accordance  with  the  law  as 
it  is  and  always  has  been,  and  not  as  this  invalid  act 
prescribes."  [P.  377. 

"  *  *  *  We  have  deemed  it  best,  in  the  con- 
flict of  the  testimony  and  the  uncertainty  that  necessar- 
ily must  be  present  when  it  is  considered  that  the  court 
below  in  establishing  and  fixing  the  dates  of  the  pri- 
orities proceeded  upon  an  improper  basis,  not  to  at- 
tempt a  reformation  of  the  decree,  but  rather  to  remand 
the  proceeding  writh  instructions  to  the  district  court 
to  vacate  the  decree  *  *  *  and  to  proceed  either 
upon  the  testimony  now  before  it  *  *  *  or  to  take 
additional  evidence  and  upon  all  of  the  evidence  to  make 
findings  and  enter  a  decree  *  *  *."  [P.  37$. 

Larimer  Canal  Co.  vs.  Amity  D.  &  I.  Co.,  26  Colo., 
1899. 

Adjudication  of  priorities. — Erroneous  decrees  not  subject  to 
collateral  attack. 

"We  base  our  opinion  upon  the  ground  that  the  de- 
cree of  1889  and  the  amendment  of  1890  were  not  void, 
but  erroneous  merely,  and  are  not  subject  to  collateral 
attack."  [P.  518. 

Lake  Fork  D.  vs.  Haley,  28  Colo.,  1901. 

Adjudication  of  priorities. — Decree  for  agricultural  purposes 
does  not  include  right  of  storage  of  same  date  in  reservoir  not 
constructed. 

"A  decree  fixing  priority  of  right  of  a  ditch  to  the 
use  of  water  for  agricultural  purposes  does  not  give  to 
it  the  priority  of  right  to  store  water  in  reservoirs 
which  thereafter  it  might  build,  as  of  the  date  be- 
longing to  ditch.  [P.  529. 

Irr.  &  Land  Co.  vs.  Ditch  &  Kes.  Co.,  27  Colo., 
1900. 

Adjudication  of  priorities.— Mills'  Ann.  Stats.,  §§2270,  2403, 
2408,  2453,  2456,  and  Rev.  Stats.,  §§3202,  3277,  3290,  3349  and 
3351,  provide  for  decrees  for  storage  purposes  independent  of 
decrees  for  direct  irrigation. 

"While  the  statutes  of  this  state  contemplate  that 
one  may,  by  complying  with  their  provisions,  acquire 
and  have  decreed  to  him  a  priority  of  right  for  storing 
water  in  reservoirs,  it  is  also  clearly  their  design  that 


this  right  shall  not  be  dependent  upon,  or  measured  by, 
a  right  which  he  may  have  to  a  decree  for  his  ditch  of 
a  priority  for  diverting  water  for  immediate  irriga- 
tion, though  the  ditch  may.,  in  addition  to  being  used 
as  a  vehicle  for  carrying  water  for  immediate  use,  be 
also  utilized  at  some  time  as  a  feeder  for  the  reservoir. 
1  'Mills'  Ann.  Stat,  §§2270,  2403,  2408,  2453,  2456."  [P. 
531. 

Irr.  &  Land  Co.  vs.  Ditch  &  Res.  Co.,  27  Colo., 
1900. 

Adjudication  of  priorities. — Conditional  decree  vests  inchoate 
right. 

"Where  a  prior  decree  awarding  water  rights  al- 
lowed an  appropriation  of  425  cubic  feet  proportion- 
ately as  the  parties  increased  their  irrigable  land,  and 
provided  that  such  increase  and  the  uses  of  the  propor- 
tionate additional  amount  of  water  appropriated  there- 
for should  be  made  with  reasonable  diligence,  such  de- 
cree only  vested  in  the  appropriators  an  inchoate  right 
to  the  water  contained  in  such  appropriation  which 
could  become  fixed  only  on  their  applying  same  to  a 
beneficial  use  within  a  reasonable  time."  [P.  304. 
Conley  vs.  Dyer,  95  Pac.,  1908. 

Adjudication  of  priorities. — Priorities  attach  to  ditch — No 
attempt  is  made  to  designate  owners  of  priorities — The  quantity 
awarded  a  ditch  is  res  judicata  as  far  as  rights  of  junior  ap- 
propriators who  were  parties  to  the  proceeding  are  concerned. 

"It  is  to  be  observed  that,  under  these  adjudica- 
tions awarding  priorities,  the  decreed  priority  attaches 
to  the  ditch,  and  a  certain  quantity  of  water  is  decreed 
to  it,  and  no  attempt  is  made  to  designate  the  person  or 
persons  who  are  the  owners  of  the  priority,  or  what 
proportion  belongs  to  each;  and,  indeed,  the  statute 
contains  no  warrant  for  determining  the  ownership  of 
the  ditch  or  the  relative  rights  of  the  water  consumers 
thereunder.  In  so  far  as  concerns  the  rights  of  junior 
appropriators  who  were  parties  to  the  proceeding,  the 
quantity  of  water  awarded  to  a  ditch  is  res  adjudicata." 
[P.  150. 

Irrigation  C.  vs.  Reservoir  Co.,  25  Colo.,  1898. 

Adjudication  of  priorities. — Decrees  rendered  under  acts  of 
1879  and  1881  (3276  to  3320  Rev.  Stats.,  omitting  3280  to  3283 
inclusive)  not  res  judicata  as  to  parties. 


«*  *  *  That  decrees  rendered  under  acts  of  1879 
and  1881,  determining  the  priorities  and  the  amount  of 
the  appropriations  of  the  several  ditches  in  an  irriga- 
ting district,  are  not  intended  to  designate  the  person 
or  persons  entitled  to  the  use  of  the  water  thus  appro- 
priated. Such  decree  is  not  res  judicata  as  to  the 
party  or  parties  entitled  to  the  control  of  a  particular 
ditch  or  to  the  use  of  the  water  conveyed  through  the 
same,  but  only  as  to  the  priority  and  amount  of  appro- 
priation of  such  ditch."  [P.  147. 

Oppenlander  vs.  Left  Hand  D.  Co.,  18  Colo.,  1892. 

Adjudication  of  priorities. — Capacity  res  judicata  after  right 
of  review  and  appeal  have  elapsed,  even  though  mistake  in  com- 
puting capacity  was  made  by  court. 

«*     *     *     rpne  present  action  is  not  for  the  purpose 

of  reforming  the  decree  upon  ground  of  mistake  or  fraud 

*  *     *     it  is  in  the  nature  of  a  collateral  attack  upon 
the  decree  after  the  statutory  time  for  their  reformation 
or  review  in  the  court  of  original  jurisdiction     *     *     * 
has  long  gone  by,  and  when  right  of  appeal  is  also  lost 
by  lapse  of  time. 

"If  a  mistake  was  made  by  the  court  in  computing 
the  capacity  of  the  ditch,  such  a  mistake  cannot  be  cor- 
rected in  this  proceeding.  The  capacity  is  res  judicata 

*  *     *"     [P.  329. 

Water  Supply  &  Storage  Co.  vs.  Larimer  &  Weld 
Irrigation  Co.,  24  Colo.,  1897. 

Adjudication  of  priorities. — Evidence,  etc.,  taken  before  ref- 
eree in  adjudication  proceeding  is  admissible  in  determining 
respective  rights  of  owners  in  action  brought  for  that  purpose. 

"Though,  on  adjudicating  water  rights  in  a  water 
district,  a  court  could  not  determine  the  amount  of  the 
appropriation  of  each  individual  and  could  only  fix  the 
amount  to  which  the  respective  ditches  were  entitled, 
evidence,  etc.,  taken  before  referee  and  relating  to  a  par- 
ticular ditch,  is  admissible  in  an  action  to  determine  the 
respective  rights  of  the  owners  of  the  ditch;  the  appro- 
priation to  the  ditch  in  the  first  proceeding  being  pre- 
sumably based  upon  the  amount  applied  by  the  owners 
to  a  beneficial  use,  and  the  rights  of  the  parties  being  de- 
terminable,  not  according  to  the  ownership  in  the  ditch, 
but  according  to  the  amount  of  water  which  they  respec- 
tively used  when  the  decree  was  rendered  in  the  first 
proceeding."  [P.  932. 

Woods  vs.  Sargent,  95  Pac.,  1908. 


229 

Adjudication  of  priorities. — Questions  to  be  determined  un- 
der—3315  Rev.  Stats.,  p.  892,  §151;  Mills'  Ann.  Stats.  2423,  p. 
1419 — Court  may  make  rules — Act  liberally  construed. 

See  Windsor  Res.  &  Canal  Co.  vs.  Lake  Supply 
Co.,   98  Pacific,   1908. 

Adjudication  of  priorities. — Duty  of  supreme  court  on  appeal 
to  examine  entire  record  where  cases  are  tried  upon  proofs  taken 
and  reported  by  referee. 

"The  case  was  tried  in  the  district  court  mainly 
upon  proofs  taken  and  reported  by  a  master  or  referee; 
it  is,  therefore,  our  duty  to  sift  and  weigh  all  the  evi- 
dence with  a  view  to  a  just  determination,  uninfluenced 
by  the  proposition  that  the  court  below  had  superior 
facilities  to  judge  of  the  credibility  of  witnesses."  Mil- 
ler et  al.  vs.  Taylor  et  al.,  6  Col.,  45."  [P.  152. 
Sieber  et  al.  vs.  Frink  et  al.,  7  Colo.,  1883. 

Adjudication  of  priorities. — Under  2432  Mills'  Ann.  Stats.,  p. 
1422;  3309  Rev.  Stats.,  p.  891,  §145,  time  to  file  proof  cannot  be 
extended  beyond  limit  prescribed  by  the  statute. 

"We  cannot  grant  the  extension.  The  provision  as 
to  time  is  mandatory.  Needle  Rock  D.  Co.  vs.  Crawford- 
Clipper  D.  Co.,  ante,  p.  209.  While  the  mere  failure  of 
appellant  to  file  the  proof  within  sixty  days  after  the 
order  of  allowance  is  made,  does  not  ipso  facto  work  a 
dismissal  of  the  appeal,  yet  if  appellees  should  inter- 
pose a  motion  to  dismiss  after  such  default  and  before 
such  proof  is  filed,  this  court  would  be  obliged  to  grant 
it."  [P.  501. 

Baer  Bros.  L.  &  C.  Co.  vs.  Wilson,  32  Colo.,  1904. 

Adjudication  of  priorities. — Statute  of  limitation  (3313  Rev. 
Stats.,  p.  892,  §§149  and  150)  does  not  apply  to  decree  obtained 
by  fraud. 

"To  hold  that  a  decree  obtained  by  fraud  could  not 
•  be  attacked  and  set  aside,  provided  the  party  perpetrat- 
ing the  fraud  could  succeed  in  concealing  his  fraudu- 
lent conduct  for  the  period  of  four  years,  would  be  to 
furnish  unprincipled  people  with  a  sword  to  be  wielded 
in  the  destruction  of  the  property  rights  of  others,  and 
offer  a  premium  to  knavery.  These  statutes  which  are 
to  be  construed  together  were  never  intended  to  have 
the  construction  indicated."  [P.  224. 

Ditch  Co.  vs.  Ditch  Co.,  19  Colo.,  1893, 

Adjudication  of  priorities. — Statute  of  limitation — §26  of  the 
act  of  1881  (3313  Rev.  Stats.,  p.  892,  §149)  does  not  apply  to 


230 

original  proceeding  by  party  who  has  never  had  his  day  in 
court,  and  his  prior  rights  are  not  affected  by  lapse  of  time 
where  such  rights  are  not  denied  or  abridged  by  enforcement 
of  decree  rendered  in  such  proceedings. 

"  *  *  *  Section  26  of  the  act  of  1881  *  *  * 
limits  the  review  or  re-argument  of  such  decrees  to  the 
period  of  two  years  from  their  entry;  section  35,  also, 
provides  that  after  the  lapse  of  four  years  from  such 
entry  all  parties  whose  interests  are  thereby  affected 
shall  be  deemed  to  have  acquiesced  in  the  same,  etc. 
But  these  sections  do  not  apply  to  an  original  proceed- 
ing for  an  adjudication  of  priorities  by  a  party  who 
has  never  had  his  day  in  court.  *  *  *  Tne  prior 
rights  of  a  party  not  served  w7ith  process  or  notice  in 
proceedings  to  adjudicate  priorities  cannot  be  held  to 
be  affected  by  the  lapse  of  time,  so  long  as  such  rights 
are  not  actually  denied,  abridged,  or  interfered  with, 
by  the  enforcement  of  the  decree  entered  in  such  pro- 
ceedings." [P.  27. 

Nichols  vs.  Mclntosh,  19  Colo.,  1893. 

Adjudication  of  priorities. — Two  year  statute  of  limitations 
applies  only  to  final  and  absolute  decrees.  Mills'  Ann.  Stats., 
§2425,  p.  1420;  3318  Rev.  Stats.,  p.  893,  §154. 

"The  two  years  statute  of  limitations  does  not  apply 
to  a  conditional  decree  wherein  date  of  priority  only 
has  been  determined.  *  *  *  It  may  be  invoked  only 
to  an  attempt  to  review  a  final  and  absolute  decree." 
[P.  277. 

Waterman  vs.  Hughes,  33  Colo.,  1905. 

Adjudication  of  priorities.— 3313  Rev.  Stats.  1908,  p.  892, 
§149;  Mills'  Ann.  Stats.  2434,  p.  1422,  requiring  suits  to  be 
brought  in  four  years — Applies  to  actions  by  one  not  a  party  to 
an  original  proceeding. 

"By  §2421  of  the  act  (3317  Rev.  Stats.,  p.  892,  §153) 
opportunity  is  given  for  hearing  by  any  person  on  ap- 
plication, who  has  failed  or  refused  to  offer  evidence 
before  the  referee."  [P.  235. 

"By  §2425  (3318  Rev.  Stats.,  p.  892,  §154)  an  ap- 
portunity  for  reargument  and  review  of  the  decree  ren- 
dered in  the  statutory  proceedings,  with  or  without  ad- 
ditional evidence,  is  afforded  parties  aggrieved  at  any 
time  within  two  years  from  the  time  of  entering  the 
decree."  [P.  236. 


231       . 

"§2427  (3307  Rev.  Stats.,  §143)  provides  for  an  ap- 
l>eal  from  the  decree  by  any  party  feeling  aggrieved 
thereby."  [P.  236. 

"We  think,  in  view  of  the  ample  opportunities 
thus  afforded  the  parties  to  the  proceeding  for  a  re- 
hearing and  review,  that  §2434  (3313  Rev.  Stats.,  p.  892, 
£149)  had  in  contemplation  an  action  by  a  person,  asso- 
ciation or  corporation  that  was  not  a  party  to  the  prior 
proceeding,  or  if  a  party  thereto,  whose  right  of  action 
grows  out  of  matters  arising  subsequent  to  the  de- 
cree." [P.  236. 

Canal  Co.  vs.  Loutsenhizer  D.  Co.,  23  Colo.,  1896. 

Adjudication  of  priorities. — Modification  of  a  general  decree 
warranted  under  3313  Rev.  Stats.,  p.  892,  §149;  2434  Mills'  Ann. 
Stats.,  p.  1A22— Limitations. 

Question :  Whether,  in  a  proceeding  against  two 
ditches  or  individuals,  an  adjudication  could  .be  had 
modifying  the  general  decree  regulating  the  distribution 
of  water  in  the  entire  district. 

"We  are  of  the  opinion  that  this  action  is  war-, 
ranted  by  §1796  Gen.  Stats.,  page  583  (Rev.  Stats.,  p. 
892,  §149)  when,  *  *  *  NO  interests  are  involved 
or  affected,  save  those  of  persons  who  are  parties  to 
the  adjudication."  [P.  309. 

Greer  vs.  Heiser,  16  Colo.,  1892. 

Adjudication  of  priorities. — Appeals — Method  of  taking  reg- 
ulated by  3307  Rev.  Stats.,  p.  890,  §143;  Mills'  Ann.  Stats.  2427, 
p.  1420,  but  not  by  the  Code. 

"The  method  of  taking  appeals  of  this  character  is 
regulated  by  §2427  Mills'  Ann.  Stats.  By  this  section 
obtaining  an  order  allowing  an  appeal  is  an  ex  parte 
proceeding.  On  presentation  of  a  statement  by  those 
desiring  an  appeal  *  *  an  order  is  made  out  allow- 
ing it  and  fixing  amount  of  appeal  bond.  *  *  *  A 
recital  in  the  order  on  the  referee's  report,  that  they  were 
given  ninety  days  in  which  to  perfect  their  appeal,  was 
without  any  effect."  [P.  60. 

Daum  vs.  Conley,  27  Colo.,  1899. 

Adjudication  of  priorities. — Appeals — Time  within  which  an 
appeal  must  be  prosecuted, •  under  2427  Mills'  Ann.  Stats;  3307 
Rev.  Stats.,  1908,  p.  890,  §143— Time  of  filing  of  transcript  with 
clerk  of  Supreme  Court,  under  Mills'  Ann.  Stats.  2429,  p.  1421; 
3310  Rev.  Stats.,  p.  891,  §146— Verification  of  statement  of  appeal 
under  §2427  Mills'  Ann.  Stats.,  p.  1420 ;  3307  Rev.  Stats.— Appli- 


v      232 

cation  for  review  under  Mills'  Ann.  Stats.  2425,  p.  1420;  3318 
Rev.  Stats.,  p.  893,  §154,  does  not  waive  right  of  appeal. 

"§2427  *  *  *  is  silent  on  that  question,  but  im- 
pliedly  it  must  be  limited  to  some  period  with  respect  to 
the  date  of  the  decree,  either  by  some  other  provision  of 
the  statute,  or  to  a  reasonable  time  after  that  date." 

"The  period  within  which  appellants  were  required 
to  lodge  their  transcript  of  record  with  the  clerk  of  this 
court  would  begin  with  the  date  their  appeal  was 
granted."  [P.  60. 

"§2427 )  *  *  *  does  not  direct  by  whom  the  state- 
ment of  appeal  shall  be  verified.  It  merely  says  it  shall 
be.  *  *  *  A  pleading  should  be  verified  by  the  party 
presenting  it,  but  this  rule  is  not  inflexible,  for  the  veri- 
fication of  another  may  be  substituted  when  good  cause 
is  shown  therefor." 

"Appellants,  by  availing  themselves  of  the  provisions 
of  §2425,  Mills'  Ann.  Stats.,  in  applying  for  a  rehearing 
and  review  of  the  decree,  have  not  waived  their  right  to 
an  appeal."  [P.  61. 

Daum  vs.  Conley,  27  Colo.,  1899. 

Adjudication  of  priorities. — In  absence  of  fraud  or  intentional 
neglect,  right  of  appeal  under  3307  Eev.  Stats.,  p.  890,  §143 ;  Mills' 
Ann.  Stats.  2427,  does  not  apply  to  consumers  but  to  owner. 
"This  provision  does  not  contemplate  that  any  one 
interested  in  a  ditch  to  which  an  award  has  been  made, 
may  have  an  appeal,  but  that  the  party  or  parties  repre- 
senting such  ditch  may  exercise  that  right.     The  party 
representing  the  ditch  means  the  owner  or  one  control- 
ling it,  and  not  the  different  consumers.    It  is  the  party 
thus  interested  who  may  appeal."    [P.  432. 

Randally  vs.  Rocky  Ford  D.  Co.,  29  Colo.,  1902. 

Adjudication  of  priorities, — Decree  not  appealed  from, though 
erroneous  conclusion  was  reached,  cannot  be  set  aside. 

"But  whether  the  district  court  thus  limited  the 
priority  because  of  this  statute,  or  whether  upon  gen- 
eral principles  it  held  that  due  diligence  in  the  prosecu- 
tion of  the  work  was  not  observed,  is  quite  immaterial. 
The  decree  thus  limiting  the  appropriation  was  pro- 
nounced by  a  court  having  jurisdiction  of  the  subject- 
matter,  of  the  persons,  and  to  enter  the  particular  judg- 
ment. It  has  not  been  appealed  from,  and  cannot  be 
set  aside  now,  even  though  an  erroneous  conclusion  was 
reached." 

Water  Co.  vs.  Tenney,  24  Colo.,  1897. 


233 

Adjudication  of  priorities. — Appeal  under  Mills'  Ann.  Stats., 
§2425,  p.  1420 ;  3318  Rev.  Stats.,  p.  893,  §154,  must  be  taken  within 
two  years  from  time  a  decree  is  rendered  in  such  proceeding. 

"By  §2425,  Mills'  Ann.  Stats.,  provision  is  made  for 
a  reargument  or  review  of  such  decrees,  with  or  without 
additional  evidence,  within  two  years  after  rendition. 
By  §2434,  Mills'  Ann.  Stats.  (3314  Rev.  Stats.,  p.  892, 
§150),  it  is  provided  that  original  actions  relating  to 
rights  affected  by  such  decrees  may  be  maintained  within 
four  years  after  entry.  It  seems  clear  from  these  pro- 
visions, that  it  was  the  intent  of  the  legislature  that  such 
decrees  should  not  be  disturbed  after  the  lapse  of  two 
years  from  date  of  entry,  except  by  original  proceed- 
ings. For  this  reason,  the  statement  for  an  appeal  in 
such  cases  must  be  presented  within  that  period,  as  an 
appeal  is  not  a  new  action,  but  a  continuation  of  the 
original."  [P.  215. 

Canal  Co.  vs.  Ft.  Morgan  R.  &  I.  Co.,  27  Colo.,  1900. 

Adjudication  of  priorities. — Appeals — Procedure  under  3310 
Rev.  Stats.,  p.  891,  §146;  Mills'  Ann.  Stats.  2429,  p.  1421,  requiring 
transcript  to  be  filed  within  six  months. 

"We  will  not  attempt  to  determine  all  the  formalities 
which  must  be  observed  in  order  to  bring  the  evidence 
introduced  below  properly  before  this  court  on  an  ap- 
peal *  when  a  decree  is  challenged  upon  the 
ground  that  it  is  contrary  to  the  evidence.  It  is  clear, 
however,  that  the  transcript  of  the  evidence  heard  below 
must  be  certified  as  containing  all  the  evidence  in  any 
manner  affecting  the  ditches  named  in  the  order  allowing 
the  appeal,  and  that  a  certificate  to  that  effect  must  be 
signed  and  sealed  by  the  trial  judge."  [P.  459. 
Kerr  vs.  Dudley,  26  Colo.,  1899. 

Adjudication  of  priorities. — Appeals — Objections  should  be 
filed  at  time  decree  is  rendered,  though  statute  gives  two  years 
in  which  to  appeal. 

"If  a  party  knowingly  and  intentionally  neglects  to 
appraise  a  court  of  his  objection  to  a  decree  at  the  time 
it  is  rendered,  when  he  has  full  opportunity  to  do  so, 
even  though  he  may  be  given  by  the  statute  two  years 
within  which  to  file  a  petition  to  reopen  it,  we  think 
the  right  to  do  so,  in  so  far  as  it  is  based  upon  a  cause 
existing  at  the  time  the  decree  is  rendered,  is  condi- 
tioned upon  his  having  at  that  time  made  an  objection 


234 

to  it,  and  saved  an  exception  to  an  adverse  ruling  upon 
his  objection."     [P.  230. 

Rio  Grande  L.  &  C.  Co.  vs.  Ditch  Co.,  27  Colo., 
1900. 

Adjudication  of  priorities. — Petition  for  appeal  under  3318 
Rev.  Stats.,  p.  893,  §154;  Mills'  Ann.  Stats.  2425,  p.  1420,  must 
show  a  cause  of  action. 

"The  statute  allowing  a  review  of  a  decree  contem- 
plates that  a  good  cause  must  be  shown  therefor;  that 
a  petition  for  this  purpose  must  state  a  cause  of  action.'' 
[P.  157. 

Crippen  &   Lawrence   vs.    Burroughs,    27    Colo., 
1900. 

Adjudication  of  priorities. — Appeals  —  Appellate    practice  — 
Bill  of  exceptions. 

"On  appeal  from  a  statutory  proceeding  adjudicat- 
ing priorities  of  water  rights,  an  objection  that  the  evi- 
dence is  not  sufficient  to  uphold  the  findings  and  decree, 
will  not  be  considered  where  the  bill  of  exceptions  is  not 
certified  by  the  judge  as  containing  all  the  evidence  af- 
fecting the  ditches  in  controversy."  [P.  168. 
Means  vs.  Gotthelf,  31  Colo.,  1903. 

Adjudication  of  priorities. — Appeals — 3309  Rev.  Stats.,  p. 
891,  §145;  2432  Mills'  Ann.  Stats.,  p.  1422;  and  3310  Rev.  Stats., 
p.  891,  §146;  2429  Mills'  Ann.  Stats.,  p.  1421,  are  mandatory  and 
are  jurisdictional  requirements. 

"By  section  2432  appellant  must  file  with  clerk  of 
supreme  court,  within  sixty  days  after  making  order  of 
appeal,  proof  of  the  service  and  publication  thereof. 

"Section  2429  requires  appellant  to  file  a  transcript 
of  record  of  the  district  court  with  clerk  of  supreme 
court  at  any  time  within  six  months  after  appeal  is  al- 
lowed. 

"Section  2432  says  if  such  transcript  is  not  filed 
within  that  time  such  appeal  shall  on  motion  be  dis- 
missed. These  provisions  with  reference  to  the  filing 
of  transcript  and  proof  of  service  and  publication  are 
mandatory.  *  *  *  They  are  jurisdictional  require- 
ments." '[P.  210. 

Xeedle  Rock  D.  Co.  vs.  Crawford-Clipper  D.  Co., 
32  Colo.,  1904. 

Irrigation  divisions. — Creating  water  divisions  and  providing 
for  appointment  of  Superintendent  of  Irrigation,  under  §2440  to 
§2446-7,  superseded  by  3335  Rev.  Stats.  1908,  p.  896,  §171,  abol- 


235 

ishiug  Superintendent  of  Irrigation  and  creating  Irrigation  Di- 
visions, and  providing  for  appointment  of  Irrigation  Division 
engineers— Duty  of,  under.  2448  Mills'  Ann.  Stats., -p.  1425  (3344 
Rev.  Stats.,  1908,  p.  284,  §9). 

" Unfortunately,  the  water  districts  as  originally  es- 
tablished did  not  in  each  instance  embrace  the  entire 
drainage  of  a  main  stream.  To  obviate  the  difficulties 
resulting  from  these  conditions,  water  divisions  were 
created,  which  practically  embrace  all  the  drainage  of  a 
given  stream.  Provision  has  also  been  made  for  the  ap- 
pointment of  an  official  in  each  of  these  divisions  whose 
duty  it  is  to  direct  that  the  waters  of  the  streams  of  each 
division  be  distributed  in  accordance  with  the  adjudica- 
tion decrees  of  the  districts  included  in  each  water  di- 
vision, so  that  in  effect  these  decrees  are  to  be  treated  as 
one,  and  the  water  distributed  accordingly."  [P.  271. 

Lower  Latham  D.   Co.  vs.  Louden  I.  C.  Co.,  27 
Colo.,  1900. 

Division  engineer. — Appointment  by  governor  and  filing  oath 
of  office  and  bond  constitutes  such  person  an  officer  de  facto — 
Such  appointment  not  subject  to  collateral  attack. 

''Having  been  appointed  by  the  governor  and  having 
filed  his  oath  of  office  and  bond  pursuant  to  statute,  he 
becomes  an  officer  de  facto,  and  the  question  of  his  ap- 
pointment cannot  be  determined  in  an  action  brought 
by  him  to  recover  his  salary/'  [P.  213. 

Montezuma  County  vs.  Wheeler,  39  Colo.,  1907. 

Water  commissioners. — Status  of,  under  3407  Rev.  Stats.  1908, 
p.  925,  §333  (2385  Mills'  Ann.  Stats.,  p.  1406)  ;  3433  Rev.  Stats. 
1908,  p.  908,  §269  (2386  Mills'  Ann.  Stats.,  p.  1406)— Not  officer 
of  court. 

"Under  above  statute,  and  the  decisions  of  this  court, 
it  may  well  be  said  that  the  water  commissioner  is  a 
police  officer  of  the  state  in  the  discharge  of  his  official 
duties,  vested  with  the  powers  (of  a  constable,  with 
authority  to  arrest  persons  interfering  with  him  in  the 
discharge  of  his  official  duties,  which  would  seem  to 
provide  ample  remedy,  *  *  *  without  resorting  to 
proceedings  as  for  contempt  of  court."  [P.  125. 
Robertson  vs.  People,  40  Colo.,  1907. 

Water  commissioners. — Duty  of,  under  3432  Rev.  Stats.  1908, 
p.  908,  §268 ;  2384  Mills'  Ann.  Stats.,  p.  1405. 

"In  times  of  security  (scarcity),  he  is  required  to 
divide  the  waters  of  the  streams  in  the  district  among 
the  ditches  taking  water  therefrom  according  to  the 


236 

prior  rights  of  each  respectively.     1  Mills'  Ann.  Stats., 
§2384."     [P.  84. 

Platte  Valley  Irr.  Co.  vs.  puckers  Co.,  25  Colo., 

1898. 

Water  commissioners. — Memorandum  kept  by  water  commis- 
sioners not  public  record — Object  of  reports  kept  by  commis- 
sioners. 

"The  statutes  do  not  require  the  keeping  of  such  a 
book.  They  do  require  that  the  commissioner  report  to 
the  state  engineer,  among  other  things,  the  amount  of 
water  coming  into  district  and  the  ditches  which  are  in- 
adequately supplied.  The  object  of  these  reports  is  to 
enable  the  state  engineer  to  perform  his  duty,  and  are 
for  his  guidance,  and  not  for  the  purpose  of  creating  or 
perpetuating  testimony."  [P.  357. 

Big  Thomson  &  Platte  River  D.  Co.  vs.  Wayne, 
36  Colo.,  1906. 

Water  commissioners.— Pay  of,  under  3434  Rev.  Stats.  1908, 
p.  908,  §270  (L.  '89,  p.  470,  §2)  amending  L.  '85,  p.  254,  §1,  which 
amends  Gen.  Stats.,  §1756,  L.  '79,  p.  106,  §36. 

"Under  §2  of  act  approved  March  25,  1889  (Sess. 
Laws  1889,  p.  470)  each  county  into  which  a  water  dis- 
trict extends  is  liable  for  an  equal  amount  of  the  com- 
pensation of  the  water  commissioner."  [P.  508. 

County    Commissioners   vs.   Locke,    2   Colo.    Ap- 
peals, 1892. 

Water  commissioners. — Not  required  to  make  any  division  of 
water  between  users  of  same  ditch. 

"A  water  commissioner  is  not  required,  nor  is  it 
his  duty,  to  make  any  division  or  distribution  of  the 
water  between  the  users  thereof  from  the  same  ditch, 
neither  has  he  the  authority  to  interfere  with  the  internal 
management  of  the  affairs  of  a  ditch  company;  but  it 
is  his  duty  to  turn  no  more  water  into  a  ditch  to  which 
it  may  be  entitled  by  virtue  of  any  decree  than  is  neces- 
sary to  serve  the  needs  of  the  consumers  under  such 
ditch,  and  to  refuse  to  turn  water  into  any  ditch  for  the 
use  of  one  not  entitled  thereto."  [P.  318. 

Cache  la  Poudre  Irr.  D.  Co.  vs.  Hawley,  95  Pacific, 
1908. 

Water  commissioner — Duty  of. 

"It  is  the  duty  of  the  water  commissioner  to  keep 
the  natural  streams  of  his  district  clear  of  unnecessary 
dams  or  other  obstructions  which  prevent  the  flow  of 


237 

the  water  in  such  stream,  and  said  commissioner  may 
remove  such  an  obstruction  without  an  order  of  Court 
or  a  ditch  owner  who  is  deprived  of  water  by  such  ob- 
struction may  by  legal  action  compel  the  removal 
thereof."  [P.  100. 

Ortiz  vs.  Hansen,  35  Colo.,  1905. 

Water  commissioners. — Can  not  claim  compensation  for  ser- 
vices performed  outside  his  own  district. 

"We  hold  that  the  act  creating  district  No.  42  was, 
in  a  legal  sense,  a  later  expression  of  the  legislative  will 
than  the  act  by  which  No.  39  was  organized." 

"It  logically  follows  that  the  plaintiff  (water  com- 
missioner for  water  district  No.  39),  having  no  jurisdic- 
tion outside  his  own  (district),  can  not  claim  compensa- 
tion for  services  performed  in  some  other  district."  [P. 
74. 

Fravert  vs.  Mesa  C.,  39  Colo.,  1907. 

Irrigation  districts. — Validity  of  act  of  1901,  creating  irriga- 
tion districts — Construction  of  portions  of  act — Notice. 

As  to  constitutionality  of  Irrigation  District  Law 
of  1901,  see  Anderson  vs.  Grand  Valley  Irr.  Dist.,  p.  525. 
35  Colo.,  1906. 

Ahern  vs.  Board  of  Directors  of  The  Highline  Irr. 
Dist.,  p.  409;  39  Colo.,  1907. 

Pleadings,  parties  and  actions.  --  Quieting    title     to     water 
rights. 

"A  bill  in  equity  will  lie  to*  quiet  title  to  water 
rights."  [P.  333. 

Kimball  vs.  Northern  Colo.  Irr.  Co.,  94  Pac.,  1908. 

Pleadings,  parties  and  actions. — Necessary  allegations  in  ac- 
tion to  quiet  title  under  Mills'  Ann.  Code,  c.  22. 

"In  an  action  to  quiet  title  to  water  rights,  a  com- 
plaint is  sufficient  under  Mills'  Ann.  Code,  c.  22,  which 
alleges  ownership  and  possession  without  setting  up 
facts  constituting  a  valid  appropriation."  [P.  333. 

Kimball  et  al.  vs.  Northern  Colo.  Irr.  Co.,  94  Pac., 
1908. 

Pleadings,  parties  and  actions. — Quieting  title — Possession — 
Equity  Jurisdiction. 

"Where  a  court  of  equity  acquires  jurisdiction  of  a 
cause  to  restrain  interference  with  a  water  right,  it  may 
properly  retain  jurisdiction  and  determine  all  the  rights 
of  the  parties ;  and  may,  independent  of  the  statute,  enter 


238 

a  decree  quieting  plaintiff's  title  to  such  water  right  al- 
though plaintiff  is  not  in  actual  possession  thereof." 
[P.  421. 

Gutheil  P.  I.  Co.  vs.  Montclair,  32  Colo.,  1904. 

Pleadings,  parties  and  actions. — In  action  to  quiet  title  court 
has  not  power  to  decree  change  in  point  of  diversion. 

"The  district  court  *  *  *  whose  primary  object 
was  to  obtain  a  decree  quieting  title  to  water  right,  had 
not  the  power  to  adjudicate  that  a  change  in  the  point 
of  diversion  thereof  might  be  made.  That  can  be  done 
only  under  the  act  so  providing."  [P.  117. 
Williams  vs.  Conroy,  36  Colo.,  1905. 

Pleadings,  parties  and  actions. — Sufficiency  of  complaint- 
Presumption  as  to  duty  of  Superintendent  of  Irrigation. 

"It  will  be  presumed  that  a  superintendent  of  irri- 
gation of  a  water  division  through  the  water  commis- 
sioners under  his  control  distributes  the  water  according 
to  the  priority  of  appropriation,  as  expressly  enjoined  by 
1  Mills'  Ann.'  Stats.,  §2448  (3335  Rev.  Stats.)  *  *  *, 
a  complaint  which  alleged  that  defendants  (superin- 
tendent of  irrigation  and  water  commissioners  under 
him)  cut  off  plaintiffs'  supply  and  ran  the  water  past 
their  headgates  for  the  use  of  ditches  in  another  district, 
does  not  state  a  cause  of  action,  since  the  presumption 
is  that  plaintiffs'  headgates  were  closed  so  as  to  supply 
senior  priorities  further  down  the  stream,  as  directed  by 
law."  [P.  16. 

McLean,  Water  Commissioner,  et  als.  vs.  Farmers 
Highline  Canal  &  Res.  Co.,  98  Pac.,  1908. 

Pleadings,  parties  and  actions. — Necessary  parties  to  suit 
seeking  to  enjoin  water  commissioner  from  diverting  water  loaned. 

"In  a  suit  brought  by  appropriators  of  water  to  en- 
join a  water  commissioner  from  diverting  water  in  a 
stream  loaned  to  subsequent  appropriators  by  prior  ap- 
propriators, such  subsequent  and  prior  appropriators  are 
necessary  parties."  [P.  302. 

Squires,  Water  Com.,  vs.  Livezey,  36  Colo.,  1906. 
Note — This  case   reviews  other  cases  pertaining  to  parties 
plaintiff  and  defendant. 

Pleadings,  parties  and  actions. — Limitation  of  actions — Ac- 
crual of  Right  of  Action  barred  after  five  years,  by  2912  Mills' 
Ann.  Stats.  (4073  Rev.  Stats.,  p.  1030,  sec.  13). 

'Plaintiff's   right   was   initiated   by   purchase   May, 

1887.     Subsequently,   and   prior   to   April,    1893,     *     * 


239 

those  rights  in  excess  of  the  estimated  capacity 
of  the  canal  were  sold  and  evidenced  by  contracts  or 
deeds.  What,  then,  was  the  earliest  date  at  which  an 
action  might  have  been  maintained  by  plaintiff  or  his 
grantors  to  annul  or  set  aside  these  contracts  *  *  * 
We  think  *  *  *  immediately  after  these  contracts 
and  deeds  were  issued.  *  *  *  The  right  *  *  * 
accrued  not  later  than  April,  1893,  or  more  than  eleven 
years  prior  to  the  date  this  action  was  instituted." 
[P.  179. 

Patterson  vs.  Ft.  Lyon  Canal  Co.,  36  Colo.,  1906. 

Pleadings,  parties  and  actions. — Complaint  under  3  Mills' 
Ann.  Stats.,  sec.  2273c  (3232  Kev.  Stats.,  1908),  is  fatally  de- 
fective which  fails  to  show  water  so  loaned  will  be  used  without 
injury  to  later  priorities. 

"A  complaint  is  fatally  defective  in  an  action  to  re- 
strain defendants  from  interfering  with  the  plaintiff 
using  water  loaned  to  him  by  other  appropriators,  which 
fails  to  allege  that  water  so  loaned  can  and  will  be  used 
by  plaintiff  without  injuring  the  vested  rights  of  defend- 
ants owning  later  priorities."  [P.  247. 

Bowman  vs.  Vriden,  40  Colo.,  1907. 

Pleadings,  parties  and  actions. — When  decree  is  res  adjudi- 
cata — W7hen  not  a  bar. 

A  decree  entered  on  demurrer  when  such  decree  goes 
to  the  merits  of  the  action,  is  res  adjudicata,  but  if  for 
lack  of  jurisdiction,  or  mistake  in  remedy,  or  some  techni- 
cal ground,  it  is  not  a  bar.  [P.  288. 

Laguna  Canal  Co.  vs.  Rocky  Ford  Ditch  Co.,  95 
Pac.,  1908. 

Pleadings,  parties  and  actions. — Necessary  parties  in  injunc- 
tion proceedings. 

"In  an  action  to  enjoin  irrigation  officers  from  en- 
forcing an  order  closing  plaintiffs'  headgate  and  divert- 
ing the  water  to  other  consumers,  the  other  consumers 
were  indispensable  parties  to  the  action,  since  the  judg- 
ment would  determine  their  rights  to  the  water  as 
against  plaintiffs',  and  they  should  have  been  brought  in 
under  Mills'  Ann.  Code,  sec.  16,  requiring  the  court  to 
order  other  parties  brought  in  when  a  complete  deter- 
mination can  not  be  had  without  their  presence."  [P. 
16. 

McLean,  Water  Com.,  et  al.  vs.  Farmers  Highline 
Canal  &  Res.  Co.,  98  Pac.,  1908. 


240 

Pleadings,  parties  and  actions. — Right  to  intervene  under 
sec.  22,  Mills'  Ann.  Code. 

See  Cache  la  Poudre  Irr.  D.  Co.  vs.  Hawley,  95 
Pac.,  p.  319. 

Pleadings,  parties  and  actions.  --  Preliminary    injunction  - 
Purpose  of. 

"The  purpose  of  a  preliminary  injunction  is  to  pre- 
serve the  status  quo  or  protect  rights  pending  the  final 
determination  of  a  case,  and  should  not  be  granted  un- 
less it  clearly  appears  necessary  to  protect  the  applicant 
from  loss  or  injury."  [P.  16. 

McLean,  Water  Com.  vs.  Farmers  Highline  C.  & 
Res.  Co.,   98   Pac.,   1908. 

Pleadings,  parties  and  actions. — Action  to  quiet  title  cannot 
be  maintained  by  administrator. 

"The  water  right  being  real  estate,  at  once,  upon  his 
death,  it  passed  to  Hoi  lister's  heirs  or  devisees,  subject 
only  to  the  payment  of  his  debts,  and  an  action  to  quiet 
title,  or  to  recover  possession,  does  not  lie  at  the  in- 
stance of  the  administrator.  For  this  reason  alone  the 
decree  as  entered  must  be  reversed. 

"It  was  proper,  however,  for  the  administrator  to 
sue  for  rents,  and  his  right  to  a  recovery  depends  upon 
the  ownership  of  the  principal  thing  out  of  which  the  rent 
issues,  and,  in  this  view,  we  must  ascertain  whose  prop- 
erty the  water  right  is."  [P.  363. 

Insurance  Co.  vs.  Childs,  25  Colo..  1898. 

Water  works. 

Right  of  city  or  town  to  purchase  or  erect  under  6525  Rev. 
Stats. 

See  Thomas,  assignee  of  City  of  Grand  Junction,  13  Colorado 
Appeals.  [P.  80. 


Chapter  161. 


DRAINAGE  DISTRICTS. 


(S.  B.  No.  38,  by  Senators  Drake  and  Jones.) 


An  Act  in  Relation  to  Drainage  Districts. 
Be  it  Enacted  ~by  the  General  Assembly  of  the  State  of  Colorado: 

Section  1.  Whenever  a  majority  of  the  holders  of  title  or 
evidence  of  title  herein  provided,  to  agricultural  lands,  which  are 
susceptible  of  one  general  mode  of  drainage  by  the  same  system 
of  works,  desires  to  provide  for  the  drainage  of  such  lands  they 
may  propose  the  organization  of  a  drainage  district  under  the 
provisions  of  this  act,  and  when  so  organized  such  district  shall 
have  the  powers,  rights  and  duties  conferred,  or  which  may  be 
conferred  by  law  upon  such  drainage  districts.  The  equalized 
county  assessment  roll  next  preceding  the  presentation  of  a  peti- 
tion for  organization  of  a  drainage  district  under  the  provisions 
of  this  Act  shall  be  sufficient  evidence  of  title  for  the  purposes  of 
this  Act. 

Section  2.  A  petition  shall  first  be  presented  to  the  board  of 
commissioners  of  the  county  in  which  the  lands,  or  the  greatest 
portion  thereof,  are  situated,  signed  by  the  required  number  of 
the  holders  of  title  or  evidences  as  above  provided  of  title  of  such 
proposed  district,  which  petition  shall  set  forth  and  particularly 
describe  the  proposed  boundaries  of  such  district,  and  shall  pray 
that  the  same  be  organized  under  the  provisions  of  this  Act; 
Provided,  however,  that  such  petition  shall  be  accompanied  with 
a  map  (drawn  to  a  scale  of  two  inches  to  the  mile)  of  the  pro- 
posed district,  together  with  a  statement  thereon  attached  thereto 
which  shall  be  prepared  by  the  county  surveyor  of  the  county  in 
which  the  major  portion  of  the  lands  proposed  to  be  included 
in  such  cHstrict  shall  be  situated  from  actual  preliminary  surveys 
showing  generally  the  proposed  drainage  ditch  or  works  by  which 
it  is  intended  to  drain  the  lands  included  in  the  proposed  district, 
also  showing  about  the  point  of  beginning  and  the  terminus 
thereof,  giving  the  names  of  the  owners  of  the  lands  and  the  de- 
scription thereof  through  which  lands  such  drainage  works  are 
proposed  to  be  constructed;  Provided,  also  the  petitioners  must 
accompany  the  petition  with  a  good  and  sufficient  bond,  to  be 
approved  by  said  board  of  county  commissioners  in  double  the 


242 

amount  of  the  probable  cost  of  organizing  such  district,  condi- 
tioned for  the  payment  of  all  costs  incurred  in  said  proceedings 
in  case  said  organization  shall  not  be  effected,  but  in  case  such 
district  is  so  effected,  then  said  expenses  incurred  by  the  board  of 
county  commissioners  shall  be  paid  back  to  said  county  by  said 
district,  or  said  board  of  county  commissioners  may  in  their  dis- 
cretion require  the  petitioners  to  pay  into  the  treasury  of  the 
county  from  time  to  time  such  sum  or  sums  of  money  as  in  their 
judgment  may  be  required  to  pay  the  cost  and  expenses  that  may 
be  incurred  in  the  formation  of  such  district;  Provided,  also  the 
petition  shall  contain  the  name  proposed  for  such  district,  and 
the  petitioners  shall  select  a  committee  of  three  of  said  petitioners, 
which  committee  shall  consist  of  resident  freeholders  of  the  pro- 
posed district,  to  present  such  petition  to  the  board  of  county 
commissioners  as  provided  by  law,  praying  that  the  said  board 
define  and  establish  the  boundaries  of  said  proposed  district  and 
submit  the  question  of  the  final  organization  of  the  same  to  a  vote 
of  the  holders  of  title  of  lands  lying  within  said  proposed  district ; 
Provided,  that  such  voters  shall  have  paid  a  property  tax  in  said 
district  within  the  year  preceding  such  proposed  organization ; 
said  petition  shall  be  signed  by  a  majority  of  the  holders  of  title 
of  lands  within  said  proposed  district  whether  such  holders  of 
lands  are  resident  or  non-resident ;  Provided,  also  that  such  peti- 
tioners shall  also  be  owners  in  the  aggregate  of  a  majority  of  the 
whole  number  of  acres  proposed  to  be  included  within  said  pro- 
posed district.  Such  petition  shall  be  published  at  least  two 
weeks  before  the  time  at  which  the  same  is  to  be  presented  in 
some  newspaper  of  general  circulation,  printed  and  published  in 
the  county  where  said  petition  is  to  be  presented,  together  with  a 
notice  signed  by  the  committee  of  said  petitioners  selected  by  the 
petitioners  for  that  purpose,  giving  the  time  and  place  of  the  pres- 
entation of  the  same  to  said  board  of  county  commissioners  and 
the  said  committee  shall  mail  said  printed  notice  to  each  of  the 
non-resident  holders  of  lands  within  said  proposed  district  to  their 
address  as  shown  on  the  tax  rolls  of  the  county  or  counties  within 
said  proposed  district. 

Section  3.  When  such  petition  is  presented,  the  Board  of 
Commissioners  shall  hear  the  same,  and  may  adjourn  such  hear- 
ing from  time  to  time,  not  exceeding  four  weeks  in  all,  and  on 
the  final  hearing  may  make  such  changes  in  the  proposed  boun- 
daries as  they  may  find  to  be  proper,  and  shall  then  enter  an 
order  on  the  records  which  shall  define  and  establish  such  boun- 
daries; Provided,  that  such  board  shall  not  modify  such  bounda- 
ries so  as  to  except  from  the  operation  of  this  Act  any  territory 
within  the  boundaries  of  the  proposed  district  which  is  susceptible 
of  drainage  by  the  same  system  of  works  applicable  to  the  other 


243 

lauds  in  such  proposed  district;  uor  shall  any  land  which  will 
not,  in  the  judgment  of  said  board,  be  benefited  by  drainage  by 
such  system,  be  subjected  to  the  operation  of  this  Act;  Provided, 
that  any  person  whose  lands  are  susceptible  of  drainage  by  the 
same  system  of  works,  may,  in  the  discretion  of  the  board,  upon 
application  of  the  owner,  have  such  lands  included  in  such  dis- 
trict. Said  board  shall,  when  requested  in  the  petition,  by  its 
order,  divide  such  district  into  three  or  more  divisions,  as  nearly 
equal  in  size  as  practicable,  which  divisions  shall  be  numbered 
consecutively,  and  one  director,  who  shall  be  an  elector  and  a 
resident  free-holder  of  the  division  shall  be  elected  by  his  division; 
Provided,  that  when  requested  in  the  petition,  three  directors, 
residents,  electors,  and  freeholders  of  the  district,  shall  be  elected 
at  large  by  the  qualified  electors  of  the  district.  Said  board  of 
county  commissioners  shall  then  establish  a  convenient  number 
of  election  precincts  for  said  proposed  district,  define  the  bounda- 
ries thereof,  and  designate  the  polling  places  therein,  which  pre- 
cincts and  polling  places  may  thereafter  be  changed  by  the  board 
of  directors.  The  board  of  county  commissioners  shall  also  ap- 
point for  each  precinct,  from  the  electors  thereof  three  judges 
who  shall  constitute  a  board  of  election  for  such  precinct,  with 
the  powers  and  duties  usually  performed  by  like  boards.  S'aid 
board  of  county  commissioners  shall  then  give  notice  of  an  elec- 
tion to  be  held  in  such  proposed  district,  for  the  purpose  of  deter- 
mining whether  or  not  the  same  shall  be  organized  under  the 
provisions  of  this  Act.  Such  notice  shall  designate  the  name  of 
the  district  and  describe  the  boundaries  thereof  and  the  bounda 
ries  of  the  precincts  established  therein,  together  with  a  designa- 
tion of  the  polling  place  and  board  of  election  for  each  precinct ; 
and  shall  require  the  electors  of  the  proposed  district  to  cast 
ballots  which  shall  contain  the  words  "Drainage  District — Yes," 
or  "'Drainage  District — No"  or  words  equivalent  thereto,  and  also 
the  names  of  one  or  more  persons  (according  to  the  divisions  of 
the  proposed  district  as  prayed  for  in  the  petition  and  ordered 
by  the  board)  to  be  voted  for- to  fill  the  office  of  director.  Such 
notice  shall  be  published  for  at  least  three  weeks  preceding  such 
election  in  a  newspaper  of  general  circulation  within  said  county ; 
and  if  any  portion  of  such  proposed  district  lie  within  another 
county  or  counties,  said  notice  shall  also  be  similarly  published 
in  a  newspaper  of  general  circulation  published  within  each  of 
said  counties.  No  person  shall  be  entitled  to  vote  at  any  election 
held  under  the  provisions  of  this  Act  unless  he  shall  possess  all 
the  qualifications  required  of  electors  under  the  general  election 
laws  of  this  state.  Except  as  herein  provided  such  election  shall 
be  conducted  as  nearly  as  practicable,  in  accordance  with  the 


244 

general  election  laws  of  this  state;  provided  that  no  particular 
form  of  ballot  shall  be  required. 

The  officers  of  such  district  shall  consist  of  three  directors, 
a  secretary  and  treasurer. 

Section  4.  The  said  board  of  county  commissioners  shall 
meet  on  a  second  Monday  next  succeeding  such  election  and 
proceed  to  canvass  the  votes  east  thereat;  and  if,  upon  such 
canvass,  it  appears  that  at  least  a  majority  of  said  legal  electors 
in  said  district  have  voted  "Drainage  District — Yes"  the  said 
board  shall  by  an  order  entered  on  their  minutes,  declare  such 
territory  duly  organized  as  a  drainage  district  under  the  name 
theretofore  designated,  and  shall  declare  the  persons  receiving, 
respectively,  the  highest  number  of  votes  for  such  several 
offices,  to  be  duly  elected  to  such  office.  And  no  action  shall 
be  commenced  or  maintained  or  defense  made,  affecting  the 
validity  of  the  organization  of  such  district,  unless  the  same 
shall  have  been  commenced  or  made  within  one  year  after  the 
making  and  entering  of  said  order.  Said  board  shall  cause  a 
copy  of  such  order  including  a  plat  of  said  district,  duly  certi- 
fied by  the  clerk  of  the  board  of  county  commissioners,  to  be 
immediately  filed  for  record  in  the  office  of  the  county  clerk  of 
each  county  in  which  any  portion  of  said  lands  are  situated, 
and  no  board  of  county  commissioners  of  any  county,  including 
any  portion  of  such  district,  shall,  after  the  date  of  organiza- 
tion of  such  districts,  allow  another  district  to  be  formed, 
including  any  of  the  lands  of  such  district,  without  the  consent 
of  the  board  of  directors  thereof;  and  from  and  after  the  date 
of  such  filing,  the  organization  of  such  district  shall  be  com- 
plete, and  the  officers  thereof  shall  immediately  enter  upon  the 
duties  of  their  respective  offices,  upon  qualifying  in  accordance 
with  law,  and  shall  hold  such  offices,  respectively,  until  their 
successors  are  elected  and  qualified. 

Section  5.  The  regular  election  of  said  district  shall  be 
held  on  the  first  Tuesday  after  the  first  Monday  in  January  in 
each  calendar  year  thereafter,  at  which  said  officers  shall  be 
elected.  The  person  receiving  the  highest  number  of  votes  for 
any  office  to  be  filled  at  such  election  is  elected  thereto.  Within 
ten  days  after  receiving  their  respective  certificates  of  election 
hereinafter  provided  for,  said  officers  shall  take  and  subscribe 
the  official  oath,  and  file  the  same  in  the  office  of  the  clerk  of 
the  county  where  the  organization  was  effected  and  thereupon 
immediately  assume  the  duties  of  their  respective  offices.  Each 
member  of  said  board  of  directors  shall  execute  an  official  bond 
in  the  sum  of  $2,000,  which  bond  shall  be  approved  by  the  judge 
of  the  county  court  of  said  county  where  such  organization 


245 

was  effected  and  shall  be  recorded  in  the  office  of  the  county 
clerk  thereof.  All  official  bonds  herein  provided  for  shall  be  in 
the  form  prescribed  by  law  for  official  bonds  for  county  officers 
except  that  the  obligee  named  in  said  bond  shall  be  the  said 
district. 

Section  6.  The  office  of  the  board  of  directors  shall  be 
located  in  the  county  where  the  organization  was  effected. 
Fifteen  days  before  any  election  held  under  this  act,  subsequent 
to  the  organization  of  the  district,  the  secretary  who  shall  be 
appointed  by  the  board  of  directors  shall  cause  notice  specify- 
ing the  polling  places  of  each  precinct  to  be  posted  in  three 
public  places  in  each  election  precinct,  of  the  time  and  place  of 
holding  the  election,  and  shall  also  post  a  general  election 
notice  of  the  same  in  the  office  of  said  board,  which  shall  be 
established  and  kept  at  some  fixed  place  to  be  determined  by 
said  board  in  said  county.  Prior  to  the  time  for  posting  the 
notices,  the  board  must  appoint  from  each  precinct,  from  the 
electors  thereof,  three  judges,  one  of  whom  shall  act  as  clerk, 
who  shall  constitute  a  board  of  election  for  such  precinct.  If 
the  board  fails  to  appoint  a  board  of  election,  or  the  members 
appointed  do  not  attend  the  opening  of  polls  on  the  morning 
of  election,  the  electors  of  the  precinct  present  at  that  hour  may 
appoint  the  board,  or  supply  the  place  of  an  absent  member 
thereof.  The  board  of  directors  must,  in  its  order  appointing 
the  board  of  election,  designate  the  hour  and  the  place  in  the 
precinct  where  the  election  must  be  held. 

Section  7.  One  of  the  judges  shall  be  chairman  of  the 
election  board  and  may:  First,  administer  all  oaths  required 
in  the  progress  of  an  election.  Second,  appoint  judges  and 
clerks,  if  during  the  progress  of  the  election  any  judge  or  clerk 
ceases  to  act.  Any  member  of  the  board  of  election,  or  any 
clerk  thereof,  may  admiuistser  and  certify  oaths  required  to  be 
administered  during  the  progress  of  an  election.  Before  open- 
ing the  polls,  each  member  of  the  board  must  take  and  sub- 
scribe an  oath  to  faithfully  perform  the  duties  imposed  upon 
them  by  law.  Any  elector  of  the  precinct  may  administer  and 
certify  such  oath.  The  polls  must  be  opened  at  eight  o'clock 
in  the  morning  of  the  election  and  be  kept  open  until  six  o'clock 
P.  M.  of  the  same  day.  It  shall  be  the  duty  of  the  clerk  of  the 
board  of  election  to  forthwith  deliver  the  returns  duly  certified 
to  the  board  of  directors  of  the  district. 

Section  8.  No  lists,  tally  paper,  or  certificates  returned 
from  any  election  shall  be  set  aside  or  rejected  for  want  of  form 
if  it  can  be  satisfactorily  understood.  The  board  of  directors 
must  meet  at  its  usual  place  of  meeting  on  the  first  Monday 


246 

after  election  and  canvass  the  returns.  If  at  any  time  of  meet- 
ing the  returns  from  each  precinct  in  the  district  in  which  th'e 
polls  were  open  have  been  received,  the  board  of  directors  must 
then  and  there  proceed  to  canvass  the  returns;  but  if  all  the  re- 
turns have  not  been  received,  the  canvass  must  be  postponed 
from  day  to  day  until  the  returns  have  been  received,  or  until 
six  postponements  have  been  had.  The  canvass  must  be  made 
in  public  and  by  opening  the  returns  and  counting  the  votes 
of  the  district  for  each  person  voted  for,  and  declaring  the  re- 
sults thereof.  The  board  shall  declare  elected  the  person  receiv 
ing  the  highest  number  of  votes  so  returned  for  each  office,  and 
also  declare  the  result  on  any  question  submitted. 

Section  9.  The  secretary  of  the  board  of  directors  must, 
as  soon  as  the  result  of  any  election  held  under  the  provisions 
of  this  act  is  declared,  enter  in  the  records  of  such  board  and 
file  with  the  county  clerk  of  the  county  in  which  the  office  of 
said  district  is  located,  a  statement  of  such  results,  which  state- 
ment must  show :  First,  a  copy  of  the  publication  notice  of  said 
election.  Second,  the  names  of  the  judges  of  said  election.  Third, 
the  whole  number  of  votes  cast  in  the  district  and  in  each  precinct 
of  the  district.  Fourth,  the  names  of  the  persons  voted  for. 
Fifth,  the  office  to  fill  which  each  person  was  voted  for.  Sixth, 
the  number  of  votes  given  in  each  precinct  for  each  of  such 
persons.  Seventh,  the  number  of  votes  given  in  the  district  for 
each  of  such  persons.  Eighth,  the  names  of  the  persons  declared 
elected.  Ninth,  the  result  declared  on  any  question  submitted 
in  accordance  with  the  majority  of  the  votes  cast  for  or  against 
such  question.  The  board  of  directors  must  declare  elected  the 
person  having  the  highest  number  of  votes  for  each  .office,  and 
also  the  result  of  any  question  submitted.  The  secretary  must 
immediately  make  out  and  deliver  to  such  person  a  certificate  of 
election,  signed  by  him  and  authenticated  with  the  seal  of  the 
board.  In  case  of  a  vacancy  in  the  board  of  directors,  by  death, 
removal,  or  inability  from  any  cause,  to  properly  discharge  the 
duties  as  such  director,  the  vacancy  shall  be  filled  by  appoint- 
ment by  the  remaining  members  of  the  board,  and  upon  their 
failure  or  inability  to  act  within  thirty  days  after  such  vacancy 
occurs,  then  upon  petition  of  five  electors  of  said  district  the 
board  of  county  commissioners  of  the  county  where  the  office  of 
said  board  of  directors  is  situate,  shall  fill  such  vacancy  or 
vacancies.  Any  director  appointed  as  above  provided  shall  hold 
his  office  until  the  next  general  election  of  said  district,  and 
until  his  successor  is  elected  and  qualified. 

Section  10.  The  directors  having  duly  qualified  shall  organ- 
ize as  a  board,  elect  a  president  from  their  number,  and  appoint 
a  secretary  and  treasurer.  The  board  shall  have  power  and  it 


247 

shall  be  their  duty  to  adopt  a  seal,  manage  and  conduct  the 
affairs  and  business  of  the  district,  make  and  execute  all  neces- 
sary contracts,  employ  such  agents,  attorneys,  officers  and  other 
employees  as  may  be  required  and  prescribe  their  duties  and 
generally  to  perform  all  such  acts  as  shall  be  necessary  to  fully 
carry  out  the  purpose  of  this  act.  Said  board  shall  have  the 
power  to  survey,  lay  out,  construct  and  to  acquire  any  and  all 
ditches,  drainage  works  required  by  such  district,  and  rights  of 
way  or  other  property  by  purchase,  condemnation  or  otherwise 
as  may  be  needed  for  such  work,  but  no  contract  involving  a 
consideration  or  expense  exceeding  $5,000,  and  not  exceeding 
$10,000,  shall  be  binding  unless  such  contract  shall  be  authorized 
and  ratified  in  writing  by  not  less  than  a  majority  of  the  legal 
electors  in  such  district,  according  to  the  number  of  votes  cast 
at  the  last  district  election;  nor  shall  any  contract  in  excess  of 
|10,000  be  binding  until  such  contract  shall  have  been  authorized 
and  ratified  at  an  election  in  the  manner  as  is  provided  for  hold- 
ing elections  under  this  Act.  The  said  rules  and  regulations 
shall  be  printed  in  convenient  form  as  soon  as  the  same  are 
adopted,  for  distribution  among  the  electors  of  such  district. 

Section  11.  Upon  the  adoption  of  a  plan  of  drainage  by 
the  board  of  directors  of  any  district  organized  under  the  pro- 
visions of  this  Act,  said  board  shall  prepare  an  assessment  book 
for  such  district,  with  proper  headings,  in  which  must  be  listed 
all  lands  within  the  district,  specifying  in  separate  columns  and 
under  appropriate  heads : 

First.  The  name  or  names  of  the  owner  or  owners  to  whom 
the  land  is  listed.  If  the  name  or  names  is  not  known  to  the 
board,  the  land  shall  be  listed  to  "unknown  owners." 

Second.  A  description  of  each  forty-acre  tract  or  lot  by 
township,  range,  section,  and  fractional  section,  and  when  such 
tract  or  lot  is  not  a  congressional  subdivision,  by  metes  and 
bounds,  or  other  description,  sufficient  to  identify  it,  giving  the 
locality  and  an  estimate  of  the  number  of  acres. 

Third.  City  and  town  lots,  naming  the  city  or  town,  and 
the  number  and  block,  according  to  the  system  of  numbering 
or  designating  in  such  city  or  town. 

Said  assessment  book  shall  also  contain  proper  columns  and 
headings  for  entries,  showing: 

First — The  respective  amounts  of  assessments  of  expense 
as  fixed  by  the  board  of  directors  on  each  40-acre  tract  or  lot,  or 
fraction  thereof. 

Second — The  amount  of  assessment  of  expense  fixed  by  said 
board  on  each  city  and  town  lot. 


24S 

Third — All  changes  made  by  the  board  in  estimating  the 
expense  chargeable  against  each  tract  or  lot. 

Fourth — The  total  amount  of  all  assessments  of  expense  on 
all  of  the  lands  affected  by  such  plan  of  drainage. 

Fifth — Such  other  matters  as  the  board  may  deem  proper. 

The  board  of  directors  shall  deliver  a  certified  copy  of  such 
assessment  book  when  completed,  to  the  county  assessor  of  each 
of  the  counties  into  which  such  district  shall  extend,  together 
with  their  report  showing  the  total  estimated  cost,  including 
expenses  of  organization  and  of  purchases  or  condemnation  of 
property,  of  the  work  contemplated  in  the  plan  of  drainage 
adopted  for  the  district  and  the  estimated  cost  for  repairs  and 
maintenance  thereof  and  the  incidental  expenses  of  such  district, 
for  the  ensuing  ten  years.  The  county  assessor  or  assessors  shall 
thereupon  as  soon  as  practicable,  proceed  to  ascertain,  estimate 
and  determine  and  assess  upon  each  40-acre  tract  or  fraction 
thereof,  and  each  city  or  towrn  lot  within  the  district  affected 
by  such  drainage  system  an  assessment  in  proportion  to  the 
entire  cost,  as  estimated  by  the  board  of  directors  and  the  benefits 
to  be  derived  from  drainage  to  each  tract,  fraction,  city  or  town 
lot  as  reported  by  said  board  and  enter  such  amount,  estimate, 
in  United  States  gold  coin,  in  the  proper  column  in  the  assess- 
ment books,  and  certify  the  same,  with  the  columns  added  up  to 
the  board  of  county  commissioners  of  the  county  in  which  the 
district  was  originally  organized.  Such  board  of  county  com- 
missioners shall  immediately  give  notice  of  the  reception  of  said 
assessment,  and  of  the  time  they  acting  as  a  board  of  equaliaztion 
will  meet  to  equalize  assessments  (which  meeting  may  be  a 
special  meeting)  by  publication  in  a  newspaper  of  general  circu- 
lation published  in  each  of  the  counties  into  which  such  district 
may  extend.  The  time  fixed  for  such  meeting  shall  not  be  less 
than  ten  nor  more  than  thirty  days  from  the  first  publication  of 
such  notice  and  in  the  meantime  such  assessment  book  must 
remain  in  the  office  of  such  board  of  county  commissioners  for 
the  inspection  of  all  persons  interested.  Upon  the  day  specified 
in  the  notice  required  by  this  section  for  the  meeting  of  the  board 
of  commissioners  which  is  hereby  constituted  a  board  of  equaliza- 
tion'for  that  purpose,  shall  meet  and  continue  in  session  from 
day  to  day  (excluding  Sundays)  as  long  as  necessary  not  to 
exceed  ten  days  to  hear  and  determine  such  objections  to  the 
valuation  and  assessment  as  may  come  before  them  and  to 
equalize  the  assessment  and  such  board  may  change  the  valua- 
tion as  may  be  just,  having  due  regard  for  the  benefits  that  may 
accrue  by  such  plan  of  drainage  to  the  respective  tracts  of  land 
or  lots  proposed  to  be  affected  thereby.  The  secretary  of  the 
board  together  with  the  secretary  of  the  board  of  directors  of 


249 

such  district  must  be  present  during  the  session  of  such  board  of 
equalization  and  note  all  changes  made  in  the  assessment,  and  in 
the  names  of  persons  whose  property  is  assessed  and  within  ten 
days  after  the  close  of  the  session  such  secretaries  shall  have  the 
total  values  and  assessments,  as  finally  equalized  by  the  board 
of  equalization,  extended  into  columns  and  added  up.  The  sums 
thus  fixed  against  each  40-acre  tract  or  fraction  thereof  and  each 
city  and  town  lot  shall  be  the  basis  for  all  assessments  within 
such  district  for  the  next  ensuing  ten  years;  Provided,  that  the 
board  of  directors  of  such  drainage  district  may  thereafter,  when- 
ever in  their  judgment  a  new  assessment  of  all  the  land  within 
the  district  becomes  necessary,  order  such  new  assessment  to  be 
made  and  shall  report  their  reasons  therefor  together  with  a  new 
schedule  to  be  prepared  by*  them  to  the  assessors  of  the  county  or 
counties  included  in  such  district  when  the  same  plan  of  pro- 
cedure shall  be  followed  as  in  the  case  of  the  original  assessment. 
After  the  assessment  has  been  determined  as  herein  provided  for, 
the  board  of  directors  of  the  district  shall  then  determine  the 
portion  of  the  costs  and  expenses  estimated,  it  will  be  necessary 
to  raise  for  the  ensuing  fiscal  year  and  shall  report  such  determi- 
nation and  estimate  to  the  board  of  county  commissioners  which 
acted  as  a  board  of  equalization  which  latter  board  shall  at  their 
first  regular  meeting  levy  an  assessment  upon  the  equalized  sums 
or  valuation  charged  up  on  each  tract  or  lot  listed  in  the  assess- 
ment book  sufficient  to  raise  the  amount  so  determined;  and  shall 
annually  thereafter,  whenever  further  assessments  for  such  pur- 
poses are  necessary  (when  an  estimate  shall  have  been  submitted 
by  the  board  of  directors,  requesting  same)  levy  the  same  in  like 
manner  and  the  clerk  of  such  board  of  county  commissioners  shall 
certify  such  levy  or  levies  to  the  county  treasurer  of  the  county 
or  counties  included  in  such  district  which  certified  report  shall 
be  deemed  and  treated  by  such  county  treasurer  as  the  tax  roll 
for  collecting  such  assessments  and  when  such  assessments  are 
collected  such  funds  shall  be  reported  and  paid  to  the  county 
treasurer  of  the  county  where  the  district  was  organized  and  the 
county  treasurer  thereof  shall  place  the  same  to  the  credit  of 

the  district  in  a  fund  to  be  called  the  "Fund  of Drainage 

District/'  and  shall  be  responsible  upon  his  official  bond  for  the 
safe  keeping  and  disbursement  of  the  same  as  in  this  act  provided. 
He  shall  pay  out  of  the  same  onty  upon  warrants  of  the  board  of 
directors  of  the  drainage  district  signed  by  the  president  and  > 
attested  by  the  secretary.  When  any  warrants  of  the  district 
are  presented  to  such  treasurer  and  there  are  no  funds  in  his 
hands  subject  to  the  payment  thereof  he  shall  stamp  the  same  in 
the  same  manner  as  ordinary  county  warrants  are  stamped  and 
they  shall  draw  interest  from  the  true  date  of  their  presentation 


at  the  legal  rate  of  interest  until  paid.  Such  treasurer  shall 
report  in  writing  at  each  regular  meeting  of  the  board  of  directors 
and  as  often  thereafter  as  requested  by  the  board,'  the  amount 
of  money  in  the  fund,  the  amount  of  receipts  since  his  last  report, 
and  the  amounts  paid  out  together  with  a  list  of  the  warrants 
presented  since  his  last  report;  such  report  shall  be  verified  and 
filed  with  the  secretary  of  the  board.  The  assessment  authorized 
by  this  section  is  a  lien  against  the  property  assessed  from  and 
after  the  date  when  the  same  is  made  and  entered  in  the  assess- 
ment book  by  the  board  of  equalization  as  provided  in  this  sec- 
tion, and  such  lien  shall  continue  until  such  assessment  is  paid 
or  the  property  assessed  is  sold  for  the  payment  thereof. 

Section  12.  The  revenue  laws  of  this  State  for  the  assess- 
ment levying  and  collecting  of  taxes  on  real  estate  for  county 
purposes  except  as  herein  modified,  shall  be  applicable  for  the 
purposes  of  this  act,  including  the  enforcement  of  penalties, 
sales  of  property  and  forfeiture  for  delinquent  assessments. 
All  taxes  levied  under  this  Act  are  special  taxes  to  be  levied 
according  to  the  benefits  to  accrue  to  the  lands  against  which 
the  same  are  assessed  and  levied. 

Section  13.  The  board  of  directors  shall  hold  a  regular 
quarterly  meeting  in  their  office  on  the  first  Tuesday  in  Janu 
ary,  April,  July  and  October,  and  such  special  meetings  as  may 
be  required  for  the  proper  transaction  of  business.  All  special 
meetings  shall  be  called  by  the  president  of  the  board,  or  any 
two  directors.  All  meetings  of  the  board  must  be  public,  and 
two  members  shall  constitute  a  quorum  for  the  transaction  of 
business;  and  on  all  questions  requiring  a  vote  there  shall  be 
a  concurrence  of  at  least  two  members  of  said  board.  All 
records  of  the  board  must  be  open  to  the  inspection  of  any 
elector  during  business  hours.  The  board,  its  agents  and  em- 
ployes shall  have  the  right  to  enter  upon  any  land  in  the  dis- 
trict, to  make  surveys  and  to  locate  and  construct  any  drainage 
ditch  or  ditches  and  the  necessary  drainage  laterals. 

Section  14.  The  title  to  all  property  acquired  under  the 
provisions  of  this  act  shall  immediately  and  by  operation  of  law 
vest  in  such  drainage  district,  in  its  corporate  name,  and  shall 
be  held  by  such  district  in  trust  for,  and  is  hereby  dedicated 
and  set  apart  for  the  uses  and  purposes  set  forth  in  this  act, 
and  shall  be  exempt  from  all  taxation,  and  said  board  is  hereby 
authorized  and  empowered  to  hold,  use  and  acquire,  manage, 
occupy  and  possess  said  property  as  herein  provided. 

Section  15.  The  said  board  is  hereby  authorized  and  em- 
powered to  take  conveyances  or  assurances  for  all  property 
acquired  by  it  under  the  provisions  of  this  Act  in  the  name  of 


251 

such  drainage  district  to  and  for  the  purposes  herein  expressed 
and  to  institute  and  maintain  any  and  all  actions  and  proceed- 
ings, suits  at  law  or  in  equity,  necessary  or  proper  in  order  to 
fully  carry  out  the  provisions  of  this  Act  or  to  enforce,  main- 
tain, protect  or  preserve  any  or  all  rights,  privileges  and  immu- 
nities created  by  this  Act  or  acquired  in  pursuance  thereof. 
And  in  all  courts,  actions,  suits,  or  proceedings  the  said  board 
may  sue,  appear  and  defend  in  person  or  by  attorneys  and  in 
the  name  of  such  drainage  district.  Judicial  notice  shall  be 
taken  'in  all  actions,  suits  and  judicial  proceedings  in  any  court 
of  this  State  of  the  organization  and  existence  of  any  drainage 
district  of  this  State,  now  or  hereafter  organized,  from  and 
after  the  filing  for  record  in  the  office  of  the  county  clerk  of 
the  certified  copy  of  the  order  of  the  board  of  county  commis- 
sioners mentioned  in  section  3  of  this  Act;  and  a  certified  copy 
of  sa^d  order  shall  be  prima  facie  evidence  in  all  actions,  suits 
and  proceedings  in  any  court  of  this  State  of  the  regularity  and 
legal  sufficiency  of  all  acts,  matters  and  proceedings  therein 
recited  and  set  forth;  and  any  such  drainage  district,  in  regard 
to  which  any  such  order  has  been  heretofore  or  may  hereafter 
be  entered,  and  such  certified  copy  thereof,  so  filed  for  record, 
and  which  has  exercised  or  shall  exercise  the  rights  and  powers 
of  such  a  district,  and  shall  have  had  or  shall  have  in  office  a 
board  of  directors  exercising  the  duties  of  their  office  and  the 
legality  or  regularity  of  the  formation  or  organization  whereof 
shall  not  have  been  questioned  by  proceedings  in  quo  warranto 
instituted  in  the  District  Court  of  the  county  in  which  such 
district  or  the  greater  portion  thereof  is  situated  within  one 
year  from  the  date  of  such  filing,  shall  be  conclusively  deemed 
to  be  a  legally  and  regularly  organized,  established  and  existing 
drainage  district  within  the  meaning  of  this  Act;  and  its  due 
and  lawful  formation  and  organization  shall  not  thereafter  be 
questioned  in  any  action,  suit  or  proceeding  whether,  brought 
under  the  provisions  of  this  Act  or  otherwise. 

Section  1(>.  It  shall  be  the  duty  of  the  board' of  directors, 
on  or  before  September  1  of  each  year,  to  determine  the  amount 
of  money  required  to  meet  the  maintenance,  operating  and  cur- 
rent expenses  for  the  ensuing  year  including  any  expense  of 
construction  that  may  have  been  theretofore  done  or  may  be 
under  way  and  the  expense  of  which  has  not  been  otherwise 
provided  for  and  to  certify  to  the  county  commissioners  of  the 
county  in  which  said  district  was  organized,  said  amount,  to- 
gether with  such  additional  amount  as  may  be  necessary  to 
meet  any  deficiency  in  the  payment  of  said  expenses  thereto- 
fore incurred,  including  bond  interest  unpaid. 


Section  IT.  It  shall  be  the  duty  of  the  county  assessor  of 
any  county  embracing  the  whole  or  a  part  of  any  drainage  dis- 
trict, to  assess  and  enter  upon  his  records  as  assessor  in  its 
appropriate  column  the  assessment  of  all  real  estate,  exclusive 
of  improvements,  situate,  lying  and  being  within  any  drainage 
district  in  whole  or  part  of  such  county  and  to  make  and  certify 
such  assessment  schedule  together  with  the  special  schedule 
a&  provided  for  in  this  Act,  to  the  county  commissioners  of  his 
county.  Immediately  after  said  assessment  shall  have  been 
extended  as  provided  by  law,  the  assessor  shall  make  returns 
of  the  total  amount  of  such  assessment  to  the  county  commis- 
sioners of  the  county  in  which  the  office  of  said  district  is  lo- 
cated. All  lands  classified  for  assessment  purposes  with  refer- 
ence to  the  benefits  to  accrue  thereto  within  the  district  for 
the  purposes  of  taxation  under  this  Act  shall  be  valued  by  the 
assessor  at  the  same  rate  per  acre,  that  is  to  say  all  lands  of 
the  same  class  shall  be  assessed  alike;  Provided,  that  in  no 
case  shall  any  land  be  taxed  for  drainage  purposes  under  this 
Act,  which  from  any  natural  cause  can  not  be  drained  Jby  the 
drainage  system  of  said  district. 

Section  18.  Said  board  of  directors  shall  keep  a  registry 
of  all  warrants  or  orders  drawn  by  them  showing  the  date, 
amount,  name  of  payee,  and  for  what  purposes  drawn  and  no 
warrant  or  order  shall  be  issued  except  upon  an  itemized 
voucher  duly  verified  stating  the  services  rendered  or  material 
furnished  the  district  and  by  whom  ordered  or  contracted. 

Section  19.  For  the  purpose  of  constructing  a  drainage 
system  and  necessary  works  for  any  district  and  acquiring  the 
necessary  property  and  rights  therefor,  for  the  purpose  of  pay- 
ing the  first  year's  interest  upon  the  bonds  herein  authorized, 
and  otherwise  carrying  out  the  provisions  of  this  Act  the  board 
of  directors  of  any  such  district  may  estimate  and  determine 
the  amount  of  money  necessary  to  be  raised  for  such  purposes 
and  are  hereby  empowered  to  call  a  special  election  at  which 
election  shall  be  submitted  to  the  electors  of  such  drainage 
district  possessing  the  qualifications  prescribed  by  this  Act  the 
question  of  whether  or  not  ^he  bonds  of  said  district  shall  be 
issued  in  the,  amount  so  determined;  Provided,  however,  Thar 
the  notice  of  such  election,  the  manner  of  conducting  the  same, 
the  issuance  of  the  bonds,  charter  and  denominations  of  the 
bonds  and  all  matters  pertaining  thereto  shall  be  conducted 
under  and  in  accordance  with  the  plan  providing  for  the  voting, 
issuance,  sale,  disposition,  character  of  lien,  exchange  of  bonds 
for  work  and  all  other  particulars  pertaining  thereto  shall  be 
identically  the  same  as  that  provided  for  in  the  matter  of 


253 

issuing  the  bonds  of  irrigation  districts  created  under  the  laws 
of  the  State  of  Colorado  and  when  so  issued  shall  be  binding 
obligations  of  said  district  to  all  intents  and  purposes  as  fully 
as  though  the  procedure  for  their  issuance  were  set  out  in  this 
Act. 

Section  20.  The  county  treasurer  of  the  county  in  which 
is  located  the  office  of  any  drainage  district,  shall  be  and  is 
hereby  constituted  ex-officio  district  treasurer  of  said  district 
and  said  county  treasurer  shall  be  liable  upon  his  official  bond, 
and  to  indictment  and  criminal  prosecution,  for  malfeasance, 
misfeasance  or  failure  to  perform  any  duty  herein  prescribed 
as  county  treasurer  or  district  treasurer  as  is  provided  by  law 
in  other  cases  as  county  treasurer  and  shall  perform  the  duties 
of  such  district  treasurer  as  provided  for  the  discharge  of  the 
duties  of  the  district  treasurer  of  irrigation  districts  in  the 
State  of  Colorado. 

Section  21.  After  adopting  a  plan  for  the  construction  of 
a  drainage  system  or  works  in  any  district  the  board  of  di- 
rectors shall  pursue  the  same  procedure  and  in  the  same  manner 
as  is  provided  for  the  construction  of  canals,  reservoirs  and 
works  by  irrigation  districts  in  the  State  of  Colorado  except  as 
modified  by  this  act. 

Section  22.  The  board  of  directors  shall  have  the  power  to 
construct  the  said  works  of  any  drainage  district  across  any 
water  courses,  street,  avenue,  highway,  railway,  canal  or  ditch 
which  the  route  of  such  drainage^  system  or  any  branch  thereof 
may  intersect  or  cross;  and  if  any  railroad  company  and  said 
board,  or  the  owners  and  controllers  of  said  property,  thing  or 
franchise  so  to  be  crossed,  cannot  agree  upon  the  amount  to 
be  paid  therefor,  or  the  points  or  the  manner  of  said  crossings, 
the  same  shall  be  ascertained  and  determined  in  all  respects  as  is 
provided  in  respect  to  the  taking  of  land  for  public  uses.  The 
right  of  way  is  hereby  given,  dedicated,  and  set  apart,  to  locate, 
construct  and  maintain  said  works,  or  reservoirs,  over,  through, 
or  upon  any  of  the  lands  which  are  now,  or  may  be  the  property 
of  the  State. 

Section  23.  The  board  of  directors  shall  each  receive  at  the 
rate  of  two  and  one-half  dollars  per  day  while  attending  meetings 
and  their  actual  and  necessary  expenses  while  engaged  in  the 
business  of  the  district.  The  salary  of  the  secretary  shall  not 
exceed  five  hundred  dollars  per  annum.  No  director  or  any  officer 
of  said  district  shall  in  any  manner,  be  interested,  directly  or 
indirectly,  in  any  contract  awarded  or  to  be  awarded  by  the  board, 
or  in  the  profits  to  be  derived  therefrom;  nor  shall  receive  any 
bond,  gratuity  or  bribe,  and  for  any  violation  of  this  provision, 


such  officer  shall  be  deemed  guilty  of  a  felony,  and  such  conviction 
shall  work  a  forfeiture  of  his  office,  and  he  shall  be  punished  by 
a  fine  not  exceeding  five  hundred  dollars,  or  by  imprisonment  in 
the  penitentiary  not  exceeding  five  years  nor  less  than  one  year. 

Section  24.  The  board  of  directors  or  other  officers  of  the 
district,  shall  have  no  power  to  incur  any  debt  or  liability  what- 
ever by  any  method  in  excess  of  the  express  provisions  of  this 
Act,  and  any  debt  or  liability  incurred  in  excess  of  such  express 
provisions  shall  be  and  remain  absolutely  void. 

Section  25.  Compensation  for  property  taken  by  the  district, 
change  of  boundaries  of  any  drainage  district  by  the  inclusion 
or  exclusion  of  lands,  dissolution  of  district,  judicial  examination 
and  confirmation  of  any  proceedings,  issue  and  sale  of  bonds  shall 
be  controlled  and  in  accordance  with  the  provisions  of  the  irri- 
gation district  laws  of  Colorado  pertaining  to  the  matters  herein 
specified. 

Section  26.  The  manner  of  contesting  any  election  held 
under  the  provisions  of  this  act  shall  be  the  same  as  provided 
for  the  trial  and  the  hearing  of  elections  of  county  officers  other 
than  county  judge. 

Section  27.  All  water  gathered  by  such  drainage  improve- 
ment shall  be  the  property  of  those  from  whose  lands  the  same  is 
taken  by  such  drainage  ditches  or  canals,  and  the  same  shall  be 
pro-rated  among  the  different  land  owners  from  which  such 
water  is  taken,  according  to  the  cost  of  the  improvement  assessed 
against  each  one,  so  far  as  is  reasonably  possible ;  Provided,  how- 
ever, That  nothing  in  this  act  contained  shall  be  construed  to 
affect,  interfere  with  or  impair  any  accrued  or  vested  rights  of 
any  kind  or  character  except  in  so  far  as  the  same  may  be  affected 
by  condemnation  as  in  this  act  permitted. 

Section  28.  Owners  of  land  which  requires  combined  drain- 
age may  provide  for  the  construction  of  drains,  ditches  or  water 
courses  upon  their  own  land  whenever  the  owners  of  lands  which 
may  require  a  combined  system  of  drainage  shall  unanimously 
and  mutually  agree  in  writing  among  themselves  upon  a  system 
of  drainage  and  the  character  of  Avork  necessary  to  be  done  to 
drain  their  lands  and  the  amount  of  money  each  shall  contribute 
towards  said  proposed  works;  they  may  reduce  their  agreement 
to  writing  specifying  the  boundary  lines  of  said  voluntary  district 
and  the  lands  therein  in  40  acre  tracts  or  smaller  tracts  if  nec- 
essary, if  giving  the  names  of  the  owners  of  each  tract  of  land 
and  also  specifying  the  work  which  they  propose  shall  be  done, 
and  naming  three  persons  among  their  number  who  shall  act  as 
directors  until  the  annual  election,  and  may  agree  upon  any  other 
lawful  matter  or  thing  which  they  may  deem  pertinent  to  the 


255 

work  proposed.  They  shall  submit  such  voluntary  agreement  to 
the  board  of  county  commissioners  of  the  county  wherein  the 
major -part  of  the  lands  proposed  to  be  included  in  such  district 
may  be  situated,  and  shall  submit  with  such  agreement  a  plat 
of  the  land  giving  a  general  description  of  the  same,  and  the  said 
board  of  county  commissioners  as  soon  thereafter  as  may  be 
practicable  shall  carefully  consider  all  questions  involved,  and 
shall  make  a  personal  inspection  of  the  land  proposed  to  be  in- 
cluded in  said  voluntary  district  or  may  employ  some  competent 
engineer  or  surveyor  to  examine  and  report  to  said  board  on  the 
same  and  the  expense  of  such  surveyor  or  engineer,  including  any 
expense  that  the  county  commissioners  may  incur  in  the  exami- 
nation of  such  project  shall  be  paid  by  the  parties  to  such  vol- 
untary agreement,  and  the  board  of  county  commissioners  may 
require  a  deposit  to  be  made  with  the  county  treasurer  of  the 
county  to  protect  the  county  against  such  expense,  if  such  board 
of  county  commissioners  shall  become  satisfied  that  the  plan  pro- 
posed is  practicable  and  will  not  interfere  substantially  with  the 
interests  of  the  public  and  that  the  agreement  submitted  is  fair 
and  equitable  in  all  respects  considering  the  benefits  which  the 
respective  lands  will  receive  from  such  voluntary  drainage  system, 
Then  the  board  of  county  commissioners  shall  enter  an  order  upon 
their  records  approving  such  agreement  and  shall  file  the  same 
with  the  county  clerk  with  the  accompanying  plat  in  the  office 
of  the  county  where  the  major  portion  of  the  land  of  said  pro- 
posed district  may  be  situated,  and  if  such  district  extends  into 
more  than  one  county  a  certified  copy  of  the  agreement  and  plat 
together  with  the  approval  of  the  county  commissioners  of  the 
county  where  the  major  portion  of  the  land  is  situated  shall  be 
filed  by  the  parties  entering  into  such  agreement  with  the  county 
clerk  of  such  other  county  or  counties,  and  thereupon  the  said 
drainage  district  shall  be  deemed  fully  organized  and  established 
by  law  and  shall  have  all  the  pOAvers  of  drainage  districts  organ- 
ized by  petition  as  hereinbefore  provided  for,  and  such  directors 
so  named  in  said  agreement  shall  then*  possess  all  the  powers  and 
proceed  in  like  manner  as  before  designated  in  the  case  of  di- 
rectors of  districts  organized  |:  by  petition,  and  the  agreement 
herein  provided  for  shall  constitute  a  charter  of  authority  of 
such  voluntary  district  and  all  lands  subscribed  to  and  volun- 
tarily included  in  said  district  shall  be  considered  as  a  unit  or 
but  one  tract  of  land  in  the  determination  of  any  question  or 
right  or  duty  as  between  said  voluntary  district  and  any  lands 
outside  thereof,  whether  lying  above  or  below  said  district  or 
adjacent  thereto  or  otherwise. 
Approved  April  L>4,  1009. 


256 


Chapter  176. 


IRRIGATION  DISTRICTS— FORMATION. 


(H.    B.    Xo.  159,    by  Mr.    Weiser.) 


An  Act  to  Amend  an  Act  Entitled  "An  Act  in  Relation  to  Irri- 
gation Districts,"  Approved  May  3,  1905. 

Be  it  Enacted  ~by  the  General  Assembly  of  the  State  of  Colorado: 

Section  1.  That  section  eleven  (11)  of  an  Act  of  the  General 
Assembly  of  the  State  of  Colorado,  entitled  "An  Act  in  Relation 
to  Irrigation  Districts,"  approved  May  3,  1905,  is  hereby  amended 
and  re-enacted  to  read  as  follows: 

"Section  11.  (Board  of  Directors — Officers — General  Duties 
—Ratio  of  Water  Distribution.)  The  directors,  having  duly 
qualified,  shall  organize  as  a  board,  elect  a  president  from  their 
number,  and  appoint  a  secretary.  The  board  shall  have  power, 
and  it  shall  be  their  duty,  to  adopt  a  seal,  manage  and  conduct 
the  affairs  and  business  of  the  district,  make  and  execute  all 
necessary  contracts,  employ  such  agents,  attorneys,  officers  and 
employees  as  may  be  required,  and  prescribe  their  duties,  establish 
equitable  rules  and  regulations  for  the  distribution  and  use  of 
water  among  the  owners  of  said  land,  and  generally  to  perform 
all  such  acts  as  shall  be  necessary  to  fully  carry  out  the  purposes 
of  this  act.  Said  board  shall  have  the  power  in  addition  to  the 
means  to  supply  water  to  said  district  proposed  by  the  petition 
submitted  for  the  formation  of  said  district,  to  construct,  acquire, 
purchase,  or  condemn  any  and  all  canals,  ditches,  reservoirs, 
reservoir  sites.,  water,  water  rights,  rights  of  way,  or  other  prop- 
erty necessary  for  the  use  of  the  district,  or  to  acquire  by  con- 
demnation, or  otherwise,  the  right  to  enlarge  any- ditch,  canal  or 
reservoir  already  constructed  or  partly  constructed.  In  case  of 
the  purchase  of  any  property  by  said  district,  when  it  shall  be 
proposed  by  the  board  of  directors  to  purchase  a  system  of  irriga- 
tion already  constructed  or  partially  constructed,  and  to  enlarge 
and  complete  the  same  adequate  to  the  needs  of  the  district,  the 
board  may  in  such  case  embody  in  one  contract  the  matter  of 
the  purchase,  the  enlargement,  and  the  completion  of  such  irriga- 
tion system  without  inviting  bids  for  such  construction  and  com- 
pletion; and  in  case  of  the  purchase  of  such  property  as  afore- 
said by  said  district,  the  bonds  of  the  district  hereinafter  pro- 


257 

vided  for  may  be  used  at  their  par  value  in  payment  without 
previous  offer  of  such  bonds  for  sale.  But  no  contract  involving 
a  consideration  exceeding  ten  thousand  dollars,  and  not  exceeding 
twenty-five  thousand  dollars,  shall  be  binding,  unless  such  con- 
tract shall  be  authorized  and  ratified  in  writing  by  not  less  than 
one-third  of  the  legal  electors  of  said  district  according  to  the 
number  of  votes  cast  at  the  last  district  election;  nor  shall  any 
contract  in  excess  of  twenty-five  thousand  dollars  be  binding 
until  such  contract  shall  have  been  authorized  and  ratified  at  an 
election,  in  manner  as  is  provided  for  the  issue  of  bonds. 

The  said  rules  and  regulations  shall  be  printed  in  convenient 
form  as  soon  as  the  same  are  adopted,  for  distribution  in  the 
district.  All  waters  distributed  shall  be  apportioned  to  each 
land  owner  pro  rata  to  the  lands  assessed  under  this  act  within 
such  district.  The  board  of  directors  shall  have  power  to  lease 
or  rent  the  use  of  water  or  contract  for  the  delivery  thereof  to 
occupants  of  other  lands  within  or  without  the  said  district  at 
such  prices  and  on  such  terms  as  they  deem  best,  provided  the 
rental  shall  not  be  less  than  one  and  one-half  times  the  amount 
of  the  district  tax  for  which  said  land  would  be  liable  if  held  as 
a  freehold,  and  provided  further  no  vested  or  prescriptive  right 
to  the  use  of  such  water  shall  attach  to  said  land  by  virtue  of 
such  lease  or  such  rental,  provided  that  any  land  owner  in  said 
district  may  with  the  consent  of  the  board  of  directors  assign 
the  right  to  the  whole  or  any  portion  of  the  water  so  apportioned 
to  him  for  any  one  year  where  practicable  to  any  other  bona  fide 
land  owner,  to  be  used  in  said  district  for  use  on  his  land  for  said 
year,  provided  such  owners  shall  have  paid  all  amounts  due  on 
assessments  upon  all  such  lands. 

The  board  of  directors  shall  further  have  power  to  lease  or 
rent  the  use  of  water  or  to  contract  for  the  delivery  thereof  to 
settlers  upon  or  occupants  of  the  public  domain  on  the  terms 
hereabove  provided;  provided  that  in  .such  case  the  board  of 
directors  shall  have  the  further  power  to  make  a  contract  on 
behalf  of  the  district  with  such  settler  or  occupant  to  the  effect 
that  such  settler  or  occupant  shall,  upon  receiving  full  title  to 
his  lands  and  upon  the  payment  of  his  proportionate  share  of  the 
bond  assessments  as  provided  in  Section  35,  include  his  lands 
within  said  district,  and  shall  upon  such  inclusion  be  entitled  to 
all  the  rights  and  privileges  of  a  member  of  said  district.  Before 
the  execution  of  such  contract  the  board  of  directors  shall  cause 
notice  of  such  contract  to  be  given  substantially  as  provided  in 
section  33  of  this  act,  with  such  changes  in  the  form  of  the  notice 
as  may  be  necessary,  and  a  hearing  upon  said  contract  and  all 
objections  thereto  shall  be  had  as  provided  in  section  34  of  this 
act.  If  upon  said  hearing  the  board  of  directors  deem  it  not  for 


258 

the  best  interests  of  the  district  to  execute  said  contract,  they 
shall  by  order  refuse  to  execute  said  contract;  but  if  they  deem 
it  for  the  best  interests  of  the  district  that  said  contract  be 
executed,  the  board  may  execute  said  contract,  and  in  such  case 
said  contract  shall  be  valid  and  binding  upon  all  parties  thereto, 
and  when  the  said  settler  or  occupant  shall  have  complied  with 
said  contract  and  obtained  title  to  his  lands,  the  board  shall, 
upon  proof  of  such  compliance  and  obtaining  of  title,  and  without 
any  further  notice  or  hearing  upon  the  matter,  enter  an  order  of 
inclusion  of  said  lands  as  provided  in  section  36  of  this  act; 
provided,  if  within  thirty  days  from  the  execution  of  said  con- 
tract, a  majority  of  the  qualified  electors  of  the  district  protest  in 
writing  to  said  board  against  the  execution  of  said  contract,  said 
contract  shall  be  held  for  naught,  and  shall  not  be  binding  upon 
any  party  thereto." 

Section  2.  That  section  36  of  said  act  is  hereby  amended  and 
re-enacted  so  as  to  read  as  follows: 

"Section  36.  (Boundaries — Orders.)  The  board  of  directors 
if  they  deem  it  not  for  the  best  interests  of  the  district  to  include 
therein  the  lands  mentioned  in  the  petition,  shall  by  order  reject 
the  said  petition,  but  if  they  deem  it  for  the  best  interests  of  the 
district  that  said  lands  be  included,  the  board  may  order  that  the 
district  be  so  changed  as  to  include  therein  the  lands  mentioned 
in  the  said  petition.  The  order  shall  describe  the  entire  boun- 
daries of  the  district  with  the  lands  so  included,  if  the  district 
boundaries  be  changed  thereby,  and  for  that  purpose  the  board 
may  cause  a  survey  to  be  made  of  such  portion  of  such  boundaries 
as  may  be  deemed  necessary,  Provided,  If  within  thirty  days 
from  the  making  of  such  order  a  majority  of  the  qualified  electors 
of  the  district  protest  in  writing  to  said  board  against  the  inclu- 
sion of  such  lands  in  said  district,  said  order  shall  be  held  for 
naught  and  such  lands  shall  not  be  included  therein.  Provided 
that  in  the  case  of  inclusion  of  government  land  according  to 
the  provisions  of  section  11,  said  protest  must  be  made  within 
thirty  days  of  the  date  of  the  execution  of  the  contract  therein 
provided  for." 

Section  3.  The  acts  and  parts  of  acts  inconsistent  herewith, 
are  hereby  repealed. 

Section  4.  In  the  opinion  of  the  General  Assembly,  an 
emergency  exists;  therefore,  this  act  shall  take  effect  and  be  in 
force  from  and  after  its  passage. 

APPROVED  April  13th  1909. 


259 


Chapter  177. 


IRRIGATION  DISTRICTS— PRIORITY  OF  RIGHT. 


(H.   B.    No.   199,  by  Mr.   McCaskill.) 


An  Act  to  Amend  Sections  11  and  12  of  an  Act  Entitled  "An  Act 
to  Repeal  Section  Five  (5),  of  an  Act  Entitled  'An  Act  to 
Provide  for  the  Appointment  of  a  State  Engineer,  and  to 
Define  His  Duties  and  Regulate  His  Pay,  and  for  the  Ap- 
pointment of  His  Assistants,  and  the  Establishment  of  Water 
Divisions,'  Approved  March  5,  1881 ;  the  Same  Being  Section 
1806,  of  the  General  Statutes,  1S83 ;  and  Also  to  Amend  Sec- 
tion Fifteen  (15),  of  an  Act,  Entitled  'An  Act  to  Regulate 
the  Use  of  Water  for  Irrigation,  and  Providing  for  Settling 
the  Priority  of  Right  Thereto,  and  for  Payment  of  the  Ex- 
penses Thereof,  and  for  the  Payment  of  All  Costs  and  Ex- 
penses, Incident  to  Said  Regulation  of  Use,'  Approved  Feb- 
ruary 19,  1879;  and  to  Establish  the  San  Juan  Water  Di- 
vision ;  Also,  to  Create  Water  Districts  in  Established  Water 
Divisions;  Also,  to  Provide  for  Utilizing  Testimony  Hereto- 
fore Offered  as  Evidence  in  the  Adjudication  of  Water 
Rights,"  Approved  April  1,  1885,  and  to  Amend  Section  3 
of  an  Act  Entitled  "An  Act  to  Amend  Sections  Four,  Seven, 
Ten,  Seventeen,  Eighteen  and  Twenty-five  of  an  Act  Entitled, 
An  Act  to  Repeal  Section  Five  (5),  of  an  Act  Entitled  'An 
Act  to  Provide  for  the  Appointment  of  a  State  Engineer,  and 
to  Define  His  Duties  and  to  Regulate  His  Pay,  and  for  the 
Appointment  of  His  Assistants  and  the  Establishment  of 
Water  Divisions,'  Approved  March  5,  1881,  the  Same  Being 
Section  Eighteen  Hundred  and  Six  of  the  General  Statutes, 
1883;  and  Also  to  Amend  Section  Fifteen  (15),  of  an  Act 
Entitled,  'An  Act  to  Regulate  the  Use  of  Water  for  Irrigation 
and  Providing  for  Settling  the  Priority  of  Right  Thereto, 
and  for  Payment  of  the  Expenses  Thereof,  and  for  the  Pay- 
ment of  All  Costs  and  Expenses  Incident  to  Said  Regulation 
of  Use,'  Approved  February  19,  1879,  the  Same  Being  Section 
Seventeen  Hundred  and  Fifty-one  of  the  General  Statutes  of 
1883,  and  to  Establish  the  San  Juan  Water  Division ;  Also 
to  Create  Water  Districts  in  Established  Water  Divisions; 
Also  to  Provide  for  Utilizing  Testimony  Heretofore  Offered 
as  Evidence  in  the  Adjudication  of  Water  Rights,'  Approved 
April  1,  1885,"  Approved  April  6,  1889. 


260 

Be  it  Enacted  by  the  General  Assembly  of  the  State  of  Colorado: 

Section  1.  That  sections  11  and  12  of  an  act  entitled  "an 
act  to  repeal  section  five  (5),  of  an  act,  entitled  'an  act  to  provide 
for  the  appointment  of  a, State  Engineer,  and  to  define  his  duties 
and  regulate  his  pay,  and  for  the  appointment  of  his  assistants, 
and  the  establishment  of  water  divisions,'  approved  March  5, 
1881 ;  the  same  being  section  1806,  of  the  General  Statutes,  1883 ; 
and  also  to  amend  section  fifteen  (15),  of  an  act  entitled  'An 
act  to  regulate  the  use  of  water  for  irrigation,  and  providing 
for  settling  the  priority  right  thereto  and  for  payment  of  the 
expenses  thereof,  and  for  the  payment  of  all  costs  and  expenses, 
incident  to  said  regulation  of  use,'  approved  February  19,  1879, 
the  same  being  section  1751,  of  the  General  Statutes  of  1883 ;  and 
to  establish  the  San  Juan  water  division;  also,  to  create  water 
districts  in  established  water  divisions;  also,  to  provide  for  util- 
izing testimony  heretofore  offered  as  evidence  in  the  adjudication 
of  water  rights,"  shall  be  amended  so  as  to  read  as  follows : 

"Sec.  11.  Water  district  No.  18  shall  consist  of  all  lands 
irrigated  by  ditches  or  canals,  taking  water  from  that  portion  of 
the  Apishapa  river  and  its  tributaries,  south  of  the  south  boun- 
dary line  of  Pueblo  county." 

"Sec.  12.-  Water  district  Xo.  19  shall  consist  of  all  lands 
irrigated  by  ditches  or  canals,  taking  water  from  that  portion 
of  the  Purgatoire  river  and  its  tributaries,  south  of  the  north 
boundary  line  of  Las  Animas  county." 

Section  2.  That  section  3  of  an  act  entitled  "An  act  to 
amend  sections  four,  seven,  ten,  seventeen,  eighteen  and  twenty- 
five  of  an  act  entitled,  an  act  to  repeal  section  five  ( 5 ) ,  of  an  act 
entitled,  'An  act  to  provide  for  the  appointment  of  a  State  Engi- 
neer, and  to  define  his  duties  and  to  regulate  his  pay,  and  for 
the  appointment  of  his  assistants  and  the  establishment  of  water 
divisions,"  approved  March  5,  1881,  the  same  being  section  eigh- 
teen hundred  and  six  of  the  General  Statutes,  1883;  and  also  to 
amend  section  fifteen  (15)  of  an  act  entitled,  'An  act  to  regulate 
the  use  of  water  for  irrigation  and  providing  for  settling  the 
priority  of  right  thereto,  and  for  payment  of  the  expenses  thereof, 
and  for  the  payment  of  all  costs  and  expenses  incident  to  said 
regulation  of  use,'  approved  February  19,  1879,  the  same  being 
section  seventeen  hundred  and  fifty-one  of  the  General  Statutes 
of  1883,  and  to  establish  the  San  Juan  water  division;  also  to 
create  water  districts  in  established  water  divisions;  also  to  pro- 
vide for  utilizing  testimony  heretofore  offered  as  evidence  in  the 
adjudication  of  water  rights,  approved  April  1,  1885,"  is  amended 
to  read  as  follows : 


261 

"Sec.  3.  Water  district  No.  17  shall  consist  of  all  lands 
irrigated  by  ditches  or  canals  taking  water  from  that  portion  of 
the  Purgatoire  river  north  of  the  north  boundary  line  of  Las 
Animas  county;  and  all  lands  irrigated  by  ditches  or  canals 
taking  water  from  that  portion  of  the  Arkansas  river  below  water 
district  No.  14,  and  above  the  mouth  of  the  Purgatoire  river,  and 
from  the  streams  running  into  the  said  portion  of  the  Arkansas 
river,  except  that  portion  of  the  Apishapa  river  and  its  tribu- 
taries, south  of  the  south  boundary  line  of  Pueblo  county." 

APPROVED  April  5,  1909. 


Chapter  178. 


IRRIGATION,  COLLEGE  AND  SCHOOL  LANDS. 


(H.  B.  No.  267,  by  Mr.  Clark.) 


An  Act  to  Provide  For  the  Admission  of  Agricultural  College 
and  Public  School  Lands  Into  Irrigation  Districts;  Pro- 
viding for  and  Authorizing  the  Assessment  of  Agricultural 
College  and  Public  School  Lands  Within  Irrigation  Dis- 
tricts for  Irrigation  District  Purposes;  and  Providing  for 
the  Payment  of  Such  Assessment  So  Levied. 

Be  it  Enacted  ~by  the  General  Assembly  of  the  State  of  Colorado: 

Section  1.  For  the  purpose  of  furnishing  water  and  secur- 
ing water  rights  for  agricultural  college  and  public  school 
lands,  lying  within  or  adjacent  to  the  boundaries  of  any  irriga- 
tion district  now  organized,  or  which  may  hereafter  be  organ- 
ized, the  State  Board  of  land  commissioners  is  hereby  author- 
ized to  petition  all  such  lands  into  such  irrigation  districts. 

Section  2.  All  such  petitions  shall  be  in  the  form  now  pro- 
vided by  law  for  the  petition  of  other  lands  into  such  irrigation 
districts,  and  shall  be  signed,  sealed  and  acknowledged  by  the 
register  of  the  State  board  of  land  commissioners,  on  behalf  of 
said  board,  and  shall  in  addition  be  countersigned  by  the 
Governor  of  the  State,  on  behalf  of  the  State,  and  when  so 
signed,  sealed,  acknowledged  and  filed  with  the  board  of  di- 
rectors of  any  irrigation  district,  shall  be  deemed  to  give  the 
assent  of  said  State  board  of  land  commissioners  and  the  State 


262 

of  Colorado  to  the  inclusion  of  all  lands  therein  described  in 
said  irrigation  district. 

Section  3.  All  such  lands  so  included  in  any  irrigation 
district  in  this  State,  shall  be  assessed  for  irrigation  district 
purposes  in  the  same  manner  and  at  the  same  rate  as  other 
lands  in  such  irrigation  districts. 

Section  4.  It  shall  be  the  duty  of  the  county  treasurer  of 
each  and  every  county  in  this  State  wherein  any  irrigation 
district  is  located,  and  in  which  such  lands  have  been  so  in- 
cluded, to  notify  the  register  of  the  State  board  of  land  com- 
missioners, on  or  before  the  first  day  of  February  of  each  and 
every  year  of  the  amount  of  district  assessments  due  on  such 
lands,  giving  therein  the  exact  description  of  each  tract  of  land 
so  assessed  and  the  amount  of  assessments  due  thereon.  Im- 
mediately upon  receiving  such  notice  it  shall  be  the  duty  of  the 
register  of  said  State  board  of  land  commissioners  to  place  the 
same  before  said  board  at  their  next  regular  meeting,  who 
shall  examine  said  notice  of  assessments  due,  and  if  the  same 
be  found  correct,  they  shall  certify  the  same  to  the  State  Treas- 
urer who  shall  pay  the  same  out  of  any  of  the  moneys  in  his 
hands  belonging  to  said  respective  land  funds  howsoever  de- 
rived, and  charge  the  same  to  said  respective  funds.  Such 
payment  shall  be  by  warrant  from  the  State  Treasurer  to  the 
proper  county  treasurer,  and  when  so  received  by  him,  he  shall 
issue  his  receipts  therefor  in  the  name  of  the  State  board  of 
land  commissioners,  and  shall  in  addition  issue  a  duplicate 
receipt  to  said  State  Treasurer. 

Section  5.  Upon  the  receipt  of  such  receipts  from  said 
county  treasurers,  it  shall  be  the  duty  of  the  register  of  the 
State  board  of  land  commissioners  to  enter  and  charge  the 
same  against  each  tract  of  land  so  paid  on,  in  a  book  to  be  kept 
by*  him  for  that  purpose,  showing  the  amount  paid,  date  of 
payment  and  to  whom  paid,  and  whenever  any  of  said  tracts 
of  land  shall  be  sold,  the  purchaser  thereof,  in  addition  to  the 
purchase  price  therefor,  shall  pay  all  of  such  accrued  assess- 
ments so  paid  as  aforesaid,  together  with  interest  thereon,  from 
the  date  of  payment  at  the  rate  of  6  per  centum  per  annum, 
such  accrued  assessments  and  interest  thereon  to  be  included 
in  the  total  purchase  price  to  be  paid  by  said  purchaser.  Pro- 
vided, That  this  section  shall  not  apply  to  such  assessments  as 
shall  have  been  paid  by  the  lessees  of  any  such  tracts  of  laud, 
theretofore  leased  from  the  State  as  hereinafter  provided. 

Section  6.  In  the  event  that  any  such  tracts  of  land  so 
included  within  any  irrigation  district,  shall  be  leased  from  the 
State  board  of  land  commissioners,  then  and  in  that  case  all 


263 

such  lessees  shall  in  addition  to  the  rental  paid  to  said  State 
board  of  land  commissioners,  pay  such  an  additional  amount  to 
said  board  as  will  equal  the  district  assessments  levied  upon 
such  lands  for  the  year  in  which  such  rental  shall  be  paid;  and 
such  moneys  when  so  received  by  the  register  of  the  State  board 
of  land  commissioners,  shall  be  turned  into  the  State  Treasurer 
and  be  by  him  kept  in  a  separate  fund  for  the  payment  of  such 
assessments  aforesaid. 

Section  7.  All  contracts  for  the  sale  of  any  such  lands  in- 
cluded within  any  irrigation  district  shall,  in  addition  to  the 
purchase  price  to  be  paid,  provide  that  such  purchaser  shall 
on  or  before  the  first  day  of  March  in  each  and  every  year,  until 
he  shall  have  secured  a  patent  for  such  lands,  pay  unto  the 
register  of  the.  State  board  of  land  commissioners  such  an 
amount  as  will  equal  the  district  assessments  so  levied  upon 
such  lands  for  the  year  in  which  such  payment  is  to  be  made, 
and  such  moneys  when  so  received  by  said  register,  shall  be 
turned  in  to  the  State  Treasurer  and  be  by  him  kept  in  a 
separate  fund  for  the  payment  of  such  assessments  aforesaid. 

APPROVED  April  5th  1909. 


Chapter  179. 


JACKSON   COUNTY 


(H.  B.  No.  342,  by  Mr.  Greenman.) 


An  Act  to  Establish  the  County  of  Jackson  and  the  Temporary 
County  Seat  Thereof;  Providing  for  the  Appointment  of 
Its  Precinct  and  County  Officers,  Fixing  the  Terms  of  Court 
Therein,  and  Attaching  the  Same  to  Certain  Congressional 
Senatorial,  Representative,  Judicial  and  Normal  Districts. 

Be  it  Enacted  by  the  General  Assembly  of  the  State  of  Colorado: 

Section  1.  That  so  much  of  the  county  of  Larimer  as  is 
included  within  the  following  described  boundaries  shall  be  set 
apart  and  is  hereby  established  as  a  county  to  be  called  the 
county  of  Jackson,  and  the  boundaries  are  as  follows,  to-wit: 

Beginning  on  the  north  boundary  of  the  State  of  Colorado 
at  the  point  where  the  present  counties  of  Larimer  and  Routt 


264 

meet,  thence  in  a  southerly  direction  along  the  summit  of  the 
Snowy  range  to  the  northwest  corner  of  Grand  county  at  the 
point  where  the  counties  of  Grand,  Koutt  and  the  present 
county  of  Larimer  join,  thence  easterly  along  the  north  bound- 
ary of  Grand  county,  which  is  the  summit  of  the  Continental 
divide  or  Snowy  range,  to  the  point  where  the  said  Snowy  range 
intersects  the  Medicine  Bow  range,  thence  northerly  along  the 
summit  of  the  Medicine  Bow  range,  to  the  north  boundary  of 
the  State  of  Colorado,  thence  west  along  said  north  boundary 
of  Colorado  to  the  place  of  beginning.  All  of  which  said  Jack- 
son county  being  that  portion  of  the  present  county  of  Larimer 
which  lies  west  of  the  Medicine  Bow  range. 

Section  14.  In  the  opinion  of  the  General  Assembly  an 
emergency  exists;  therefore,  this  act  shall  take  effect  and  be  in 
force  immediately  after  its  passage  and  approval. 

APPROVED  May  5th  1909. 


265 


INDEXES. 


NOTE — In  the  index  to  statutes  will  be  found  sections  which 
do  not  appear  in  this  compilation,  owing  to  the  fact  such  sections 
were  not  revised  under  chapter  entitled  "Irrigation." 

The  numbers  refer  to  the  sections. 

The  heads  of  the  topical  index  to  decisions  are  the  same  as 
appear  in  the  Revised  Statutes  of  1908  under  title  of  "Irrigation." 
References  in  the  alphabetical  index  are  to  be  found  in  the  top- 
ical index. 


INDEX  TO  STATUTES. 


adjudication  of  priorities,  claim  must 

be  filed  before  offering  evidence  —  3316 

costs   of,   how  paid  ....................  3320 

in   supreme   court,   how  paid  ......  3311 

decree,     appeal     from,    who     may 

take    ...................................  3307 

costs   in   supreme    court  ............  3311 

order   allowing   ......................  3307 

service   of   ..........................  3308 

proof  of   ..........................  3309 

procedure  to  perfect  ................  3307 

supreme   court    amend     or    make 

new   decree    ........................  3312 

evidence  at   hearing,   who   may  of- 

fer   ..............  .  ......................  3294 

books  and   records  in  ...............  3296 

failure    to    produce  ................  3297 

claim    filed   before   offering  ........  3316 

effect  of  failure  to  offer  ............  3317 

former   used,   when  ..................  3295 

limitation  of  actions  ..................  3313 

on  rehearing  .........................  3318 

referee,    appointed,    when  ............  3291 

accounts  kept  by  ....................  3300 

adjourned   hearing,    when  ..........  3302 

compensation    of    ...................  3300 

how  paid   ...........................  3300 

contempt  before    ....................  3299 

court  may  dismiss,   when  ..........  3306 

vacancy,  how  filled  ................  3306 

fees    of   witnesses    before  ..........  3301 


give  notice  of  taking  testimony.. 
publication   and  posting  of 
proof  of 


3292 
3292 
3293 

hearing  before,    notice  of  ..........  3292 

what  facts  to  be  ascertained  —  3298 

who  may  offer  evidence  at  ......  3294 

when  former  evidence  in  ........  3295 

powers    and    duties    of  .............  .  3296 

report    of,    contents  .................  3304 

filing    ..................................  3305 

final    order    on,    when  ...............  3305 

rights  of  parties  against,  for  neg- 

lect   ....   ..........  ..................  3303 

what   referred   to  ....................  3291 

rehearing,   none  after  two  years...  3318 

rules  governing,  court  may  make..  3315 
sheriff     not     serve     writ      out     of 

county    ................................  3319 

when    suit    barred  .....................  3314 

adjudication   of  priorities  for  irriga- 

tion.   court    number,    ditches  ......  3290 

reservoirs    ............  ..............  3290 

decree     determining     priority     and 

amount   of   water  ....................  3284 

hearing  for,   before   court  ............  3284 

notice  of,    posted  and  published..  3286 

how   served    ........................  3288 

none  required   after  decree  ......  3289 

proof  of  posting  and  publishing.  3287 

jurisdiction   of   court  ..................  3276 

notice  of  application  for,  published 

•      and   posted   ...........................  3286 

proof  of  publication  and  posting.  3287 

served   on   all   parties  ...............  3288 

served   by  mail,   when  ............  3288 

petition   for   ............................  3284 

secretary   of   state   publish   act   au- 

thorizing   .............................  3278 

certificate    of   publishing,    filed  ____  3279 

effect    of    ...........................  3279 

proof    of    publication  ................  3278 

statement    of    claim,     contents  ......  3277 

filed    .                                                      .  3277 


adjudication    of   priorities     for    pur- 
poses other  than  irrigation 3280 

court  number  water  rights 3281 

jurisdiction   of   court 3280 

petition  for   3280 

allotment  of  water  on  alternate  days.  3166 

appropriation  of   seepage   w.ater 3177 

appropriation  of  water,  map  of  ditch 

or  reservoir  filed 3181 

certified  copies  of  in  evidence 3186 

state  engineer  examine  map,  etc...  3185 

statement  attached  to  map 3182 

signed  and  sworn  to 3184 

construction  of  ditch  or  reservoir  on 

desert   land    5142 

decree  of  priority,  copy  of  filed  when 
point  of  division  changed  from  one 

district   to   another 3230 

desert   land,    ditch   or   reservoir   on..  5142 
ditches,    cleaning    and    repairing    by 

co-owners    4051 

lien  for   4053 

action  begun  within  6  months..  4056 

attorney    fees    and    costs 4059 

judgment,    execution    4057 

assignment    of    4055 

request  to  clean,   failure 4052 

sale   of   ditch  to   satisfy   redemp- 
tion     4058 

satisfaction   of,    entered 4060 

refusal    to    enter,    penalty    4060 

statement    filed,    contents 4054 

statement    attached    to 3182 

bridge  over,  owner  must  maintain.  3235 

must  be  built  in  three  days 3236 

built  by  supervisor,    if  not 3236 

cost   of,    how   recovered 3237 

certified    copies    of    destroyed    rec- 
ords  recorded    5269 

description  of  in  assessment  sched- 
ule    5779 

by  assessor   5780 

diligent  construction  required 3186 

enlargement    of,    statement    of 3183 

exempt  from  taxation,  when 5546 

head  of,  extended  up  stream,  when  3173 

in   cities,    covered   when 3241 

head    of.    latticed 3242 

map   of  filed 3181 

measurement  of  water  in  by  owner  3256 

by   commissioner 3258 

no  land  burdened  with  two 3170 

owner  maintain   embankments 3233 

construct    bridge    5829 

permit    enlargement,    when 3172 

prevent  waste   3238 

provide   water   on   demand 3254 

penalty  for  failure 3257 

running  excess   water  in  forbidden  3239 

right   of   way   for 3167 

extent  of   3168 

condemnation  of  3169 

shall   be   kept   in   repair 3255 

shortest  route  for  must  be  taken..  3171 
ditch    and    reservoir   companies   may 

condemn  right  of  way 2461 

enter  lands   to   survey 2462 

pay  days  of 6981 

use  of  truck  system   by 6997 

division  engineer,  appointment 3335 

applicant   for   appointment 3338 

examination   of  papers    3340 

qualifications   of    3389 

rating  of  certified  to  governor —  3340 


268 


division  engineer— continued. 

bond    of    3343 

commissioners  report  to 3350 

tabulate  report  of  commissioners  3348 

copies  of  priority  decrees  furnished  3346 

same    3349 

hear    charges    against   water    com- 
missioner     3345 

meeting  of  engineers 3347 

report  of 3350 

oath   of   3343 

owner  failing  to  receive  water  re- 
port to  3351 

powers  and  duties  of 3344 

salaries   and   expenses   of 3342 

supervision    of    3324 

vacancy  in,  examination  to  fill 3337 

domestic  purpose,  water  appropriated 

for  not  to  be  used  for  other 3178 

penalty   for   misapplication 3179 

drainage,  board  of  viewers,  duties..  3191 

report  of  3192 

disposition  of  drained   water 3201 

engineers  and  viewers,  fees  of 3199 

hearing  on  petition 3192 

joint    hearing,    when 3192 

petition  to  establish  drain 3188 

bond  of  petitioners 3190 

contents  of  petition 3189 

hearing    on    3191 

right  of   eminent   domain 3200 

when  plan  feasible 3194 

report   3194 

appeal  from  3194 

when   plan   not  feasible 3193 

work  done  by  contract,  when 31% 

acceptance  of   3198 

expenses   of  pro  rated 3197 

drainage   surplus   water 2463 

exchange  of  water,  owners  may 3232 

same    3225 

headgates  and  weirs  maintained  in 

case    of    3249 

floating  timber  down  stream,   lawful 

when   6458 

bond  for < 6458 

gauge     rods,    must     be     maintained, 

when   3251 

headgates,    owner    maintains 3244 

same    3246 

liability  for  failure  to  maintain....  3245 

locks  for,  provided... 3247 

size  of  timbers 3244 

headgates  and  weirs,  construction  of  3248 

control  of   3252 

owner     transferring     water     must 

maintain  3248 

penalty   for,    cutting  or   breaking..  3495 

interfering   with    3497 

rating    tables    furnished 3250 

state    engineer     require     owner     to 

maintain  3329 

water   not   delivered    if    not   main- 
tained    3248 

injuring  dam,   dyke,  etc.,   penalty —  1881 
irrigation    districts,     annexation    of, 

contiguous  territory  3471 

redi vision  of  district 3479 

election    of    officers 3479 

boundaries   changed  on 3475 

legal   representatives   may   petition 

for   3478 

order  allowing  3476 

recorded    3476 

petition  for   3471 

allowance    of    3476 

granted*,  when  3475 

hearing  of  3473 

notice  of  3472 

petitioners  pay   for 3474 

plat   of,    recorded 3476 

effect  of  3477 

bonds   of,    a  lien 3456 


irrigation  districts— continued 

election  to  authorize 3454 

ballot  at  3454 

election  to  authorize  additional  is- 
sue         3454 

interest  coupons    3454 

judicial  examination  and  conforma- 
tion   of    3489 

hearing  on   3493 

notice  of  3491 

petitipn  for    3490 

pleadings  in  action  for 3492 

land  board  invest  in,  when 5199 

life   of    3454 

may   be  used  as  purchase  money..    3450 

payable,    when    3454 

payment    of,    when 3454 

how    3456 

sale  of   3455 

application    of    proceeds 3455 

tax  levy,   for  paymen£  of 3457 

assessor    extend    3458 

county   commissioners   fix 3459 

boundaries   of,   change  of 3470 

construction  of  ditch,  etc.,   by 3462 

claim    for    3463 

audited 3463 

payment   of   3463 

contract   for    3462 

officers  not  interested  in 3466 

contracts  of,  voted  on,  when 3450 

conveyances  by 3453 

directors  of   3442 

election   of    3445 

bond    of    3445 

duties  of  3450 

execute  conveyances  3453 

may  appear  in  suits 3453 

meetings   3451 

officers  of  3450 

powers  of    3451 

vacancy  in   3449 

dissolution   of,    petition   for 3489 

election  to  submit  question  of 3487 

canvass  of  vote  of '....    3488 

record  of   3488 

election  of  directors,   when  held —    3445 

canvass    of    votes 3448 

election   officials,    duties 3447 

notice  of  3446 

record   of   votes , 3449 

election  to   submit  question   of   or- 
ganization         3443 

ballots  used  at,  form  of 3443 

canvass  of  votes 3444 

election  precincts  for 3444 

notice  of    3443 

proclamation    of    3444 

qualification   of  electors 3443 

eminent  domain,   right  of 3465 

pay  for  property   taken 3469 

exclusion  of  lands  from 3481 

division   of  district  in  case  of....    3486 

order  allowing,  recorded 3485 

effect    of    3485 

petition   for    3481 

granted,    when    3484 

hearing   on    3483 

notice   of    3482 

indebtedness    of,    limit    of 3467 

may  be  organized,  when 3440 

officers  of  3442 

not  interested  in  contracts 3466 

salaries   of    3466 

organization    of,    expense    of,    how 

paid    3464 

petition   for   establishment   of  con- 
tents      3441 

commissioners  hear    3442 

cost   bond  filed  with 3441 

filed,  where  3441 

presentation  of  3442 

publication    of    3441 


269 


irrigation  districts— continued, 

property  of,   exempt  from  taxes —  3452 

how    held    3452 

rate  of  charge  for   water 3464 

rights  to  cross  highway,  etc.,  with 

ditch  3465 

suits,    appear,    in,    how 3453 

taxes  of,  how  collected,  etc 3461 

treasurer   of,    county   treasurer   act 

as  3460 

duties   of    3460 

salary    of    3460 

trees  conserving  waters  of,   not   to 

be    cut    2626 

warrants  of,  when  issued 3463 

water  of,   supply  of,  insufficient —  3468 

irrigation  division     boundaries   of —  3335 

jurisdiction  of  divisions  4  and  5....  3336 

supervision    of    3335 

lien  attaches   to  water  right 4031 

map  of  ditch  or  reservoir  filed 3181 

statement    attached    to    map 3182 

measuring  weirs,  must  be  maintained  3248 

of  meadow,  right   of 3176 

owner    of    reservoir,    etc.,    shall    not 

change   flow   of   water,    etc 2773 

penalty    for,    breaking    ditch,    flume, 

etc 3495 

interfering  with  headgate 3497 

point   of   diversion,    change   of 3222 

change  to  other  district 3230 

notice    of    change 32^9 

petition  to  change 3226 

joinder    in    petition 3228 

notice   of    3227 

same    3226 

water  must  be  registered 3223 

commissioner  keep  record 3224 

when    change    allowed 3227 

appeal  from  allowance 3231 

priorities,  adjudication  of 3276 

same    3280 

priority  decree  furnished  engineer 3316 

same    3349 

rate  of  charge  for  water,   establish- 
ment  of    3262 

same    3265 

bonus  deemed  an  extortionate  rate  3271 
penalty     for     collecting     excessive 

rate    3272 

rating   tables    furnished   by   commis- 
sioner   3250 

reservoir,    completion  of  work,   engi- 
neer's  statement   of 3205 

condemnation  of  land  for 3202 

construction   of,    supervision  of 3202 

same    3205 

cost  of  3206 

plans   of  submitted 3202 

same    3205 

diligent    construction    required 3186 

enlargement  of,  statement  of 3183 

inspection    of,    cost    of 3206 

liability  for  overflow 3204 

map   of   filed 3181 

statement  attached  to 3182 

owner    of,    liable     for     damage    by 

overflow    3204 

plans   of  submitted 3202 

same    ., 3205 

right  to  construct  to  store  water..  3202 

survey   of    3253 

report  of  3253 

unsafe,  complaint  that  reservoir  is  3209 

duty  of  engineer  3209 

appeal   from  decision  of  engineer  3212 

expense   of  examination 3211 

liability    of    owner    for    damages 

from  3213 

same    3204 

power  of  engineer  in  inspecting 3210 

water,  amount  of  stored  in,  state 

engineer   determine 3207 

commissioner   withdraw  excess...  3208 


reservoir — continued 

from   may   be   conducted   through 

stream    3203 

not    stored    in    if    gauge    rod    not 

maintained   3251 

reservoir  on  arid  land,   compensation 

of  county  surveyor 3220 

completion  of  3217 

construction  of  3216 

supervision    of 3216 

inspection   of    3219 

plat  of  3217 

approval    of    3218 

repair  of  3219 

survey   of  site  for 3215 

sale  of  public  lands  to  promote 5197 

state  land  for   irrigation  projects..  5183 

spring,   right  to   water   from 3177 

state  canals  and  reservoirs,  Api- 
shapa  creek  reservoir,  appropria- 
tion for 3533 

board    of    construction 3535 

location    3534 

property  of   state 3536 

sale  or  lease  of  water 3537 

money  from,  disposition.. 3538 

Boss    lake    reservoir,    location 3555 

control  of   3560 

Chaffee    county    reservoir,    location  3555 

board    of    construction 3556 

powers  of 3556 

disposition    of    water 3557 

management  of   3557 

same    3560 

penalty   for   damaging 3559 

property  of  state 3557 

Coal  creek  reservoir,  appropriation 

for  3529 

penalty    for    damaging 3532 

property   of  state 3530 

water  in,  right  to 3529 

delivery    of    3530 

control  of 3561 

same    3562 

same    3560 

convict  labor  used   on 3499 

feeders    for    South   Platte   and   Ar- 
kansas     3527 

property    of    state 3528 

Hardscrabble    creek    reservoir,    ap- 
propriation      3539 

board  of  construction 3541 

distribution  of  water 3542 

location  3539 

maintenance  and  repair 3544 

penalty   for   damaging 3545 

plans   and  specifications 3540 

property   of   state 3542 

Mesa  county  ditch,  location 3514 

cash  subscriptions,  how  used 3519 

certificate   of  indebtedness 3516 

construction  of  3517 

contract   for   transporting  supplies, 

convicts,    etc 3521 

convict  labor  used  on 3517 

return     of    convicts     to    peniten- 
tiary   3529 

property   of  state 3515 

right   of   way   for 3518 

deputy    warden    in   charge    of   con- 
victs    3523 

manager  of,  salary 3524 

sale  or  lease  of  water 3525 

superintendent  of  construction,  sal- 
ary      3522 

Monument  creek  reservoir,  location..  3551 

disposition   of   water   in 3552 

penalty   for   damaging 3554 

property    of    state 3552 

penitentiary      commissioners      may 

construct   3499 

Saguache   creek  reservoir,    location..  3546 

board  of  construction 3547 

disposition  of  water  in 3548 


270 


Saguache  creek  reservoir— continued. 

penalty   for   damaging 3550 

property   of  state 3548 

state   canal  No.   1,   board   of  control 

of   3505 

duties   of   3505 

expenses  of,  how  paid 3513 

rights  and  powers  of 3508 

aid  in  construction 3504 

certificates  of  indebtedness  issued..    3504 

received  as  money,  when 3512 

land  board  assume  control  of,  when    3506 

construct   laterals    3511 

establish  charge  for  water 3509 

penitentiary      commissioners      may 

contract    3499 

powers  of 3501 

sale  and  lease  of  water  from 3503 

same 3509 

state  engineer  survey 3500 

title  to  vests  in  state 3502 

same    3510 

use  of  water  in 3507 

state   canal  No.   3,   location 3526 

relinquished   to    United   States 6928 

waste   gates,    owner    maintain 3246 

water,    no    person    to    receive    more 

than    entitled    to 3260 

penalty    for    receiving 3261 

allotted   on  alternate  days,   when..    3166 

prorated  among  consumers 3175 

appropriated  for  domestic  purposes, 

use  of  restricted 3178 

penalty    for    misapplication 3179 

failure   to  receive  reported 3351 

measurement  of,  by  owner 3256 

by  commissioner  3258 

measurement,  inch,  defined 7026 

owner  of  ditch  furnish,    when 3254 

penalty  for  failure 3257 

penalty   for  refusal  to  deliver 2373 

prorated    among    consumers 3175 

rate    of    charge     for,    in    irrigation 

district  3464 

county   commissioners  fix 3263 

same    3268 

hearing    3263 

same  3268 

commissioners  fix  time  of 3262 

same  3267 

petition   for 3262 

same  3265 

regulation    of    3262 

same    3265 

right   to  continue  purchase   of 3264 

seepage,   appropriation  of 3176 

spring,  right  to 3176 

unit  of  measurement  of 3330 

use  of,  who  entitled  to 3165 

users  may  protest  against   cutting 

trees  on  state  land 2630 

waste  of,   commissioner  prevent 3438 

water   commissioners,    appointment..    3427 

assistants,    employed  when 3436 

salary  of   3436 

time  of,  account  of 3437 

begin   work,    when 3430 

bond  of   3427 

bribery  of,    penalty 1723 

charges  against,  trial 3345 

deputy,    appointment 3435 

salary   3435 

devote  entire  time  to  duty 3431 

distribute  water  for  purposes  other 

than  irrigation  3283 

duties   of   3432 

failure  to  perform,  penalty 3439 

inspect  ditches   3438 

measure  water  in  ditch 3258 

penalty   for  failure 3258 

neglect  of   duty,    penalty 3431 

oath  of  office 3429 

one  for  each  district 3427 


water  commissioners— continued. 

open  and  shut  headgates 3432 

owner    report     failure     to     receive 

water    to     3351 

powers  of 3433 

prevent  waste  of  water 3438 

removal   of 3428 

removal  or  suspension  of 3345 

report  of 3350 

tabulated   by   engineer 3348 

salary   of    3434 

how  paid 3434 

subordinate  to  whom 3433 

supervision  over 3324 

term    of   office 3427 

vacancy  in,  how  filled 3428 

withdraw  excess  water  from  reser- 
voir-   ; 3208 

water    districts,    boundaries,    district 

number  one  3354 

district  number  two 3355 

district  number  three 3356 

district  number  four 3357 

district  number  five 3358 

district  number  six 3359 

district  number  seven 3360 

district  number  eight 3361 

district  number  nine 3362 

district   number  ten 3363 

district  number  eleven 3364 

district  number   twelve 3365 

district   number   thirteen 3366 

district  number  fourteen 3367 

district  number  fifteen 3368 

district  number  sixteen 3369 

district  number  seventeen 3370 

district  number  eighteen 3371 

district  number  nineteen 3372 

district  number  twenty 3373 

district  number  twenty-one 3374 

district  number   twenty-two 3375 

district  number  twenty-three 3376 

district    number    twenty-four 3377 

district  number  twenty-five 3378 

district  number  twenty-six 3379 

district  number  twenty-seven 3380 

district  number  twenty-eight 3381 

district  number  twenty-nine 3382 

district  number  thirty 3383 

district  number  thirty-one 3384 

district  number  thirty-two 3385 

district  number  thirty-three 3386 

district  number  thirty-four 3387 

district  number  thirty-five 3388 

district  number  thirty-six 3389 

district   number   thirty-seven 3390 

district  number  thirty-eight 3391 

district  number  thirty-nine 3392 

jurisdiction  of  court  over 3426 

district  number  forty 3393 

district  number  forty-one 3394 

district  number  forty-two 3395 

same  3396 

district  number  forty-three 3397 

district  munber  forty-four 3398 

district  number  forty-five 3399 

district   number    forty-six 3400 

district  number  forty-seven 3401 

district  number  forty-eight 3402 

district  number  forty-nine 3403 

district  number  fifty 3404 

district  number  fifty-one 3405 

district  number  fifty-two 3406 

district  number  fifty-three 3407 

district  number  fifty-four 3408 

district    number    fifty-five 3409 

district  number  fifty-six 3410 

district  number  fifty-seven 3411 

district    number    fifty-eight 3412 

district  number  fifty-nine 3413 

district   number  sixty 3414 

district  number  sixty-one 3415 

district  number  sixty-two 3416 


271 

water  districts—  continued.  water  districts—  continued 

district  number  sixty-three  ..........    3417          one  commissioner  for  each...  3427 

district  number  sixty-four  ............    3418          what  constitutes  ...  ,       3353 

Sic'  S?f£££xe::::::::::::  fg!T  '  "• 

SS83  SSSSS  »£?:::::::::  SS 


expense     of     commissioner,     how  court   number    .........................  3281 

paid    .................................  3425  same    ..................................  329° 

jurisdiction  of  covirt  over  ..........  3426  water     wheel,     right     to     place     on 

new,  how  formed  ......................  3363  stream    ..................................  3180 


TOPICAL  INDEX  TO  DECISIONS. 


Page 

RIGHT   OF   WAY— 

Right  of  private  party  to  condemn 174 

Compensation  for  injury  to  settler  on  public  domain 174 

Congressional  Act  of  1866  Construed  as  Granting 174 

Condemnation  proceedings— question   of  necessity 174 

Condemnation  proceedings— questions  to  be  determined 175 

Condemnation  proceedings — damages    175 

Private  ditches  only  subject  to  enlargement 175 

Manner   of   procuring    176 

3165  Rev.  Stats,  cor  strued  as  conferring 176 

As  to  right  of  way  arising  from  necessity 176 

3167  Rev.  Stats,  granting  right  of  way— modification 176 

3172  Rev.  Stats,   conferring  right  of  way — constitutionality  of 177 

Right   to  enlarge  applies  to  through  ditches   only 177 

Condemnation  proceedings— waiver  of  question  of  necessity 178 

Verified  statement  under  Mills'  Ann.  Stats.,  §§2264-5,  not  evidence  of  title 

—nor   constructive    notice    of 178 

Acquired  under  Rev.  Stats.  1868  an  easement 178 

Right  of  private  party  to  condemn  artificial  channel 179 

Vesting  of  for  natural  stream 179 

APPROPRIATION— 

Riparian   rights— how  affected   by  constitution 179 

Riparian  rights— doctrine  of  in  Colorado 179 

Appropriation— existence    of    doctrine    180 

Common   law— adoption   of    180 

Right  of  diversion  and  use— guaranteed  under  constitution 180 

Priority   recognized    by   constitution    , 180 

Appropriation  under   3177  Rev.    Stats 180 

First   appropriator— extent    of   right 181 

What  is   an   appropriation 181 

What  constitutes   a  legal   appropriation 181 

What  constitutes  a  reasonable  time 181 

Application   to   beneficial    use 181 

True   test    of    181 

Relation— doctrine   of    182 

Right   to  use  of  water— a  property   right 182 

Property  rights  in  water  consists   of 182 

Domestic  use— who  may  appropriate  182 

Domestic    use   under    constitution 183 

Prior  vested  rights  not  affected  §§5  and  6,  article  16,  of  the  constitution.  183 

Status    of  carrier   under   constitution 183 

Damages  for  injury  to  prior  vested  rights 183 

Protection  of  vested  rights  by  act  of  congress,  1866 184 

Protection   of   vested   rights    after   patent 184 

Legislature  has  power  to  regulate  use  affecting  appropriations 184 

Use  must  be  beneficial    185 

Right  of  priority  not  dependent  upon  locus  of  application 185 

Protection  of  priority  rights  after  patent 185 

Respective  rights  of  appropriator  on  main   stream  and  tributaries— ex- 
tent of  application  186 

Rights   acquired   under  executed  agreement— statute  of  frauds 186 

3165  Rev.    Stats.— right   secured  thereby 186 

Surface  drainage— use  of   ,. 187 

T'nderflow,    subject    to    187 

Waters  of  a  spring— when  not  subject  to  appropriation 187 


274 

APPROPRIATION— Continued. 

Page 

Seepage  water— after  reaching  stream  bed,  not  subject  to 187 

Passive  acceptance  of  water  flowing  into  canal  does   not  constitute  an 

appropriation 188 

Abandoned   water— subject    to    188 

Water  hoisted   from   mine— subject   to 189 

Percolating  waters— what   are   not 1S9 

Waters  of  tributary  reaching  the  main  stream— presumption— burden  of 

proof , 189 

Increase  in  flow  due  to  personal  efforts— subject  to 189 

What  is   increase  water   190 

Underflow  governed  by  same  rules  of  law  as  surface  flow 190 

Right  to   enter  stream  and   remove  an  obstruction 196 

Joint  filing  and  construction  of  ditch— separate  application   of  water 191 

Change  in  point  of  diversion— effect  on  priority 191 

Map   and   statement   law   unconstitutional 191 

Right  of  carrier  to  demand  bonus 191 

Climatic   conditions— effect    of    191 

Taxation— water  mains  realty   192 

Taxation— canals   exempt  from    192 

Taxation— ditch  used  as  a  means  to  derive  profit  not  exempt 192 

Water  right  an  appurtenance 192 

Conveyance  of  water— water  right  passing  as  an  appurtenance 193 

Rules  to  determine  whether  or  not  water  right  passes  as  an   appurte- 
nance—stare   decisis    193 

Conveyance   of  water   right— statutes  of  frauds 193 

Conveyance  of  water  rights— construction   of  habendum  clause   in  deed 

of   trust 193 

Conveyance  of  water  rights— sheriff's  deed  194 

Conveyance  of  water  rights— may  pass  as  an  appurtenance ., 194 

Conveyance  of  water  rights— right  of  purchaser  under  foreclosure  sale.  194 

Conveyance  of  land  only  does  not  transfer  interest  in  ditch 194 

Conveyance  of  water  rights— effect  of  reservation  of  reservoir  priority..  195 

Abandonment— what    constitutes    195 

Abandonment— failure   to   use— presumption 195 

Abandonment— burden   of  proof   195 

Abandonment— applies   only   to  completed  appropriations 196 

.    Abandonment— of    priority    196 

Abandonment— matter   of  intention— evidence 196 

Abandonment  of  construction   196 

Abandonment— re-entry  and  prosecution  after  negligence 196 

Abandonment— evidence   of  non-user   197 

Abandonment— of  right  of  review 197 

Contracts— status  of  consumer  under  contract  with  carrier 197 

Contract— limitation  of  application  of  water  to  particular  lands 197 

Contract— waiver  of  priority  under 198 

Contract— measure  of  rights   198 

Contracts— refusal  of  carrier  to  furnish  water— right  of  consumer 198 

Contract— measure  of  rights  under  198 

Contract— liability  of  carrier  for  failure  to  deliver  water 199 

Contracts— relation  between   irrigation   company  and  stockholder 199 

Contract— making  stock  do  double   duty,   void 199 

Contract— rule  of  interpretation— application    200 

Contracts— status  of  company  organized  to  take  title  for  benefit  of  pur- 
chasers   201 

Contract— to  enlarge— right  of  carriage  an   easement 201 

Contract— perpetual  right  to  use  of  water— easement 201 

Contract— perpetual   right   to  flow    in   irrigation    ditch— easement 201 

Easement  created  by   202 

Contract  with  city  or  town  for  water  works 201 

Stream  bed— use  of  for  reservoir  site 202 


275 

USE  OF  WATER— 

Page 

Prorating    statute— constitutional    202 

Constitutional  limitation  of  prorating  statute 203 

Prorating  statute— as  to  decree  being  in  violation*  of 203 

Appropriators   of  water  through  same  ditch— different   priorities 204 

Loan   statute— constitutional    204 

Loan   statute— construction    of ; 204 

Change  in  point  of  diversion — questions  to  be  determined 205 

Statute  regulating  change  of  point  of  diversion— validity  of 205 

Transfer  decree— necessity  of  205 

Shareholder  in  mutual  ditch  company  may  change  point  of  diversion —  206 
Transfer  decree— jurisdiction  of  district  court  to  render  from  one  water 

district    to    another 206 

Change   of  point   of  diversion— mining  appropriations 206 

Change   of  point  of   diversion— agricultural   appropriations 207 

Change  from  one  agricultural   use  to'  another 207 

Act  providing  for  change  of  point  of  diversion— constitutional 208 

Change  of  point  of  diversion— limitation— application  to   subsequent  ap- 

propriators 208 

Priority  for  agricultural  purposes— sale  of 208 

User  of  water— licensee   209 

Use  of  surface  drainage— adjoining  tracts  of  land 209 

Storage— change  of  place  of 209 

Priority  fqr  direct  irrigation  can  not  be  changed  to  that  of  storage 209 

Domestic  use— right  of  city  or  town  to  take  under  6525  Rev.  Stats 210 

Domestic  use— incident  to  riparian  ownership— sale  of 210 

Use — upon    larger    acreage — presumption 210 

DUTIES    OF    OWNERS— 

Damage  to  property— due  to  escaping  water— duty  to  prevent 211 

Police  power   of  city— extent  of 211 

Duty  of  keeping  enlarged  ditch  in  repair 211 

Duty  to  furnish  headgates  under  3255  Rev.  Stats 211 

Duty  of  ditch  companies— to  keep  highways  open— under  5829  Rev.  Stats.  212 
Act    of   1887— regulating    distribution    of    water— within    police    power    of 

state 212 

RATE    OF   CHARGE   FOR    WATER— 

Power  of  county  commissioners  to  fix  rate  of  charge 212 

3262  Rev.    Stats.— regulating  charges— constitutional 212 

Limitation  upon  power  of  county  commissioners  to  fix  rate  of  charge...  213 

No  appeal  from  rate  fixed  by  county  commissioners 213 

Right  of  purchaser  of  water  under  3264  Rev.  Stats.— not  limited  by  fact 

he   can  procure  water  from  another  source 213 

Right  of  prior  purchaser  under  3264  Rev.   Stats.— condition  precedent....  214 

Duty  of  carrier  to  sell  under  3264  Rev.   Stats 214 

Right  under  3264  Rev.  Stats.— continuance  of  a  use  already  exercised 214 

Statute    does    not  impair  right  of  consumer 215 

Right  of  party  not  consumer  to  petition  under  3263  Rev.  Stats 215 

Proviso   of  act  under   3263  Rev.   Stats,    does   not   contemplate   mere   op- 
tions   216 

Prosecution  under  3273  Rev.   Stats.— for  refusal  to   deliver  water 216 

Assessments— failure    to    pay— sale   of   stock 216 

See  Grand  Junction  Irr.  Co.   vs.   Fruita  Imp.  Co 216 

ADJUDICATION  OF  PRIORITIES— 

Nature   of  adjudication   statutes 216 

Statutory  proceedings  in   nature  of  action  in  rem 217 

Irrigation  statutes— object   of    217 

Adjudication  proceedings— who  is  a  party.... 218 

Adjudication   proceedings— character   of   testimony 218 


276 

ADJUDICATION   OF  PRIORITIES— Continued. 

Page 

Adjudication  proceedings— character   of  testimony 218 

Decree— limited  to  actual  necessity 218 

Jurisdiction  of  district  court— under  constitution  and  act  of  1879-81  to  de- 
termine priorities  218 

Jurisdiction   of  district  court  exclusive  under  3376  Rev.   Stats 219 

Jurisdiction  of  district  court  not  subject  to  collateral  attack 219 

Jurisdiction  of  courts  of  this  state  to  award  priorities  to  use  of  water  for 

land  outside  the  state . 219 

Act  of  1879-81  applies  to  irrigation  purposes   only 219 

Jurisdiction  of  district  court— vesting  of 220 

Jurisdiction    of    district    court— exclusive— not    subject    to    review    under 

code  action   220 

Jurisdiction  of  district  court  under  3276  Rev.   Stats 221 

Decree— modification  of    221 

Capacity  'not   determining    element 221 

Questions  to  be  determined  in  adjudication  proceedings  for  storage  pur- 
poses   222 

Reservoir  enutled  to  one  filling  each  season 222 

Prior  vested  rights  can  not  be  changed  to  injury  to  junior  appropria- 

tor 222 

Decree  not  an  absolute  verity— does  not  protect  claimant  from  abandon- 
ment   223 

District    court— authority    to    give    ditch    fixed    carrying   capacity   before 

application  to  beneficial  use 223 

District  court— authority  to  vacate  decree  pending  review  under  3318  Rev. 

Stats 224 

Under    statutory    proceedings— relative    rights    of    co-claimants— can    not 

be  inquired  into   224 

Statute  of  limitation,  3313-14  Rev.  Stats.,   applies  to  different  appropria- 

tors  taking-  water  from  the  same  stream  in  different  districts 224 

Decree   embraces   rights   of  consumer   and   carrier   and   operates    as    an 

estoppel  upon  consumers  in  establishing  their  separate  rights 225 

Action  requesting  modification  of  decree— not  a  proper  action  for  pur- 
pose of  determining  rights  of  parties  therein 226 

Court— power  of  to  determine  date   of  priority  of  in  completed  canal —  225 
Priority   based   upon   map   and    statement   law   protected— future    rights 

how  determined   225 

Erroneous  decree  not  subject  to  collateral  attack 226 

Decree  for  agricultural  purposes  does  not  include  right  of  storage 226 

Rev.  Stats.  3202,  3277,  3290,  3349  and  3351  provide  for  decrees  for  storage- 
independent  of  decrees  for  direct  irrigation 226 

Conditional   decree— vests  inchoate  right 227 

Priorities  attached  to  ditch— no  attempt  to  designate  owners 227 

Decree  rendered  under  acts  of  1879-81— riot  res  judicata  as  to  parties 227 

Capacity  is  res  judicata— after  right  of  review  and  appeal  have  elapsed.  228 

Evidence— takem  before   referee— when   admissible 

Questions  to  be  determined  under  3315  Rev.  Stats 229 

Supreme  court — duty   of  on  appeal 229 

Time  to  file  proof  under  3309  Rev.  Stats.— extension 

Statute  of  limitations  does  not  apply  to  decree  obtained  by  fraud 229 

Statute    of    limitation— does    not    apply    to    an    original    proceeding— by 

party  who  has  never  had  his  day  in  court 230 

Two-year  statute   of  limitation   applies   only  to    final    and   absolute    de- 

9on 
crees 

Statute  of  limitations  applies  to  actions  by  one  not  party  to  an  orig- 
inal proceeding  

Modification  of  a  general  decree— warranted  under  3313  Rev.  Stats.— lim- 
itations   r* 

Appeals— method  of  taking  regulated  by— 3307  Rev.   Stats.— not  by   code.    231 


277 

ADJUDICATION   OF   PRIORITIES— Continued. 

Page 

Appeal— time  within  which  it  must  be  prosecuted— time  of  filing  tran- 
script with  clerk— verification  of  the  statement  of  appeal— applica- 
tion for  review  does  not  waive  right  of  appeal 231 

Appeal— right  of  does  not  apply  to  consumers  but  to  owner 232 

Decrees— not  appealed  from  though  erroneous,  can  not  be  set  aside 232 

Appeal   under   3318  Rev.    Stats,    must  be   taken    within    two   years   from 

time  of  rendering  decree 233 

Appeals— procedure  under  3310  Rev.  Stats,  requiring  transcript  to  be  filed 

within  six  months    233 

Appeals— objections  should  be  filed  at  time  decree  is  rendered 233 

Appeal— petition  for  under  3318  Rev.  Stats  must  show  a  cause  of  action.    234 

Appeals— appellate  practice— bill  of  exceptions 234 

Appeals— requirements  under  3309—10  Rev.  Stats,  are  mandatory  and 
jurisdictional  requirements  234 

IRRIGATION  DIVISIONS— 

Act  creating  and  for  appointment  of  irrigation  engineers— duty   of 234 

DIVISION   ENGINEER— 

Officer  de  facto— appointment  not  subject  to  collateral  attack 235 

WATER   COMMISSIONERS— 

Status    of— under  3407  and  3433  Rev.  Stats.— not  officer  of  court 235 

Duty  of— under  3432  Rev.   Stats 235 

Memorandum  book  kept  by  water  commissioner  not  a  public  record— ob- 
ject of 236 

Pay  of— under  3434  Rev.    Stats 236 

Duty  of— not  required  to  make  division  of  water  between  users  of  same 

ditch 236 

Can  not  claim  compensation  for  services  performed  outside  his  own 
district 237 

IRRIGATION   DISTR1CTS- 

Validity  of  act  of  1901— construction  of  portion  of  act— notice 237 

PLEADINGS,   PARTIES  AND  ACTION'S— 

Quieting  title   to   water  right 237 

Necessary  allegation  to  quiet  title— under  Mills'  Ann.  Code,  c-22 237 

Quieting   title— possession— equity    jurisdiction    237 

In  action  to  quiet  title  court  has  not  power  to  decree  change  in  point 

of   diversion    238 

Injunctive   relief— sufficiency   of   complaint 238 

PLEADINGS,   PARTIES   AND  ACTIONS— 

Necessary  parties— to  suit  seeking  to  enjoin  a  water  commissioner  from 

diverting  water   loaned 238 

Limitation  of  action  under  4073  Rev.  Stats 238 

Complaint  under  3232  Rev.  Stats,  is  fatally  defective  which  fails  to  show 

water  so  loaned  yill  be  used  without  injury  to  later  priorities 239 

Decree— when  res  judicata— when  not  a  bar ' 239 

Injunction   proceedings— necessary  parties   239 

Right  to  intervene  under  section  22,  Mills'  Ann.    Code 240 

Preliminary  injunction— purpose   of    240 

Action  to  quiet  title  can  not  be  maintained  by  administrator 240 


STATUTORY   CONSTRUCTION,  REVISED  STATUTES  1908. 


Sec.  Page 

3307— Time  within  which  to  prosecute  an  appeal— verification  of  statement..  231 

Regulating  method  of  taking  appeals 231 

Right  of  appeal   under  applies  to  owners— qualifications 232 

3309— Adjudication— time   for   filing   proof— extension 229 

10— appeals— requirements  are  mandatory  and  are  jurisdictional  require- 
ments   234 

3310— Time  of  filing  transcript  with  clerk  of  supreme  court 231 

Requiring  tr?  nscript  to  be  filed  within  six  months— procedure  under...  233 

3313— Four  years  statute  of  limitations— reason  of 217 

3314— Statute  of  limitations— appropriators   taking  water  from   same  stream 

in  different  districts— subject  to 224 

Statute  of  limitations— does  not  apply  to  a  decree  obtained  by  fraud..  229 
Statute   of   limitations— does    not   apply    to   an    original    proceeding  by 

party  who  has  never  had  his  day  in  court 230 

Applies  to  actions  by  one  not  a  party  in  original  proceedings 230 

Statute  of  limitations— modification  of  decree  under 231 

3315— Court  may  make  rules,   etc.— questions  to  be  determined  thereunder...  229 

3318— Abandonment   of   right    to   review 197 

Authority  to  vacate  decree  pending  review 224 

Two-year  statute  of  limitations— applies  only  to  final  decrees 230 

Application  for  review  under— does  not  waive  right  of  appeal 231 

Appeal  must  be  taken  within  two  years  from  time— decree  is  rendered 

in  such  proceeding  233 

Petition  for  appeal— must  show  cause  of  action 234 

3335— Abolishes  superintendent  of  irrigation— creates  irrigation  divisions  and 

provides  for  appointment  or  irrigation  engineers 234 

3334— Duty  of  irrigation  division  engineer 235 

3376— Jurisdiction   of  court— exclusive  under 219 

3407 — and  3433 — status   of   water   commissioner   under 235 

3432— Duty   of  water   commissioner 235 

4073— Statute  of  limitations— limitations  of  actions 238 

3434— Pay  of  water  commissioner   236 

4231— Water  hoisted  from  mine,   subject  to  appropriation 189 

5540— Water  mains  in  public  streets— realty  for  purpose  of  taxation 192 

5829— Duty  of  ditch  companies  to  furnish  headgates 212 

6525— Domestic  use  for  city  or  town— right  of  city  or  town  to  purchase  or 

erect  water  works    210 

3165— Right  of  way— construed  as   conferring 176 

Secures  right  to  divert  for  irrigation  purposes 187 

and  3232— use  of  stream  bed  as  reservoir  site 202 

3167— Granting  right  of  way— modified  by  act  of  1881 176 

3170-1-2— Only  private   ditches  subject  to  enlargement 176 

Conferring  right  to  enlarge— applies  to  through  ditches  only 177 

3172— Right  of  way— manner  of  procuring 176 

3172— Constitutionality   of 177 

3175— Prorating  statute— constitutionality  of   202 

3177— Appropriation  under   180 

Use  of  surface  drainage  not  appropriation  thereunder 187 

Seepage  water  having   reached  stream  bed— not  subject  to  appropria- 
tion thereunder    187 

3202,  3277,  3349  and  3351— Provision  thereunder  for  decrees  for  storage 226 

3226— Regulating  change  of  point  of  diversion— validity  of 205 

Shareholder  in  mutual  ditch— may  change  point  of  diversion  thereunder  206 

and  3231— Change  point  of  diversion— constitutionality  of 208 


280 


Sec.  Page 

3230— Jurisdiction— court— transfer   decree 206 

3232— Loan  statute— constitutionality  of   204 

Loan  statute— construction   of   204 

Complaint   under    239 

3233-3238— Duty  of   owners   under 211 

3239— Contract   limiting  application  of  water— upheld  thereunder 197 

3255— Duty  of  canal  companies  to  furnish  headgates 211 

6-7-8-9— Regulation  of  the  distribution  of  water  within  police  power  of 

state 212 

3262— Regulating    charges— constitutional    212 

3263— Party  not  consumer  may  petition  for  rate 215 

Proviso   of   act   construed 216 

3264— Right  of  purchaser  of  water  under 213 

Condition  precedent  to  right  of  purchase 214 

Duty   of   carrier   to   sell .' 214 

Does  not  repeal  992  Rev.  Stats.,  1908 214 

Not  repealed  by  aot  of  1887 215 

3265— Limitation  of  power  upon  county  commissioners  to  fix  rates 213 

3271— 2-3-4-5— Anti-royalty    statute— construction    of 215 

3273— Prosecution  under  for  the  refusal  to  deliver  water 216 

3276-3320— Omitting  3280-83— applies  to  irrigation  purposes  only 219 

3290— Irrigation   statutes— object   of    217 

3276— Jurisdiction  of  court 221 

3284  and  3290— Reservoirs  entitled  to  but  one  filling  each  season 222 


ALPHABETICAL  INDEX. 


Page 
ABANDONMENT— 

What  constitutes   195 

Failure   to  use— presumption    195 

Burden  of  proof  195 

Applies  only  to  completed  appropriations   196 

Of  priority   196 

Of  construction    196 

Re-entry  and  prosecution  after  negligence 196 

Matter  of  intention— evidence 196 

Evidence   of   non-user    197 

Right   of  review    197 

Decree  does  not  protect  claimant  from 223 

See    appropriation    195 

APPEALS— 

Method  of  taking   231 

Time  within  which  it  must  be  prosecuted 231 

Right  does  not  apply  to  consumer,  but  to  owner— limitation 232 

Under  3318  Rev.  Stats 233 

Procedure  under  3310  Rev.  Stats 233 

Objections    233 

Petition   for— must  show  cause   of  action 234 

Requirements   under  3309-10  Rev.    Stats 234 

Appellate  practice— bill  of  exceptions 234 

Duty  of  supreme  court    229 

ASSESSMENTS— 

Failure  to  pay— sale  of  stock 216 

See  rate  of  charge  for  water ! 216 

CARRIERS— 

See  Rate  of  Charge  for  Water... 212 

See  Contracts 197 

See  Constitutional  Construction   183 

CHANGE   OF  POINT  OF  DIVERSION— 

Validity  of  act  regulating  same 205 

Mining   appropriations    206 

Agricultural    appropriations    207 

Act  providing  for— constitutional 208 

Limitation— application  to  rights  of  subsequent  appropriators 208 

Questions  to  be  determined 205 

Transfer  decree— necessity  of   205 

Change  from  one  agricultural  use  to  another 207 

CONDEMNATION  PROCEEDINGS— 

Right  of  private  party  to  condemn 174 

Question  of   necessity 174 

Questions    to    be    determined 175 

Waiver   of  question  of  necessity 174 

Damages 175 

Compensation  for  injury  to  settler  on  public  domain 174 

See  right  of  way ; 174 

Right  of  private  party  to  condemn  artificial  channel  for  natural  stream.  179 


282 

• 

CONVEYANCES  OF   WATER   RIGHTS-  Page 

Water  right  passing-  as  an  appurtenance 193 

May  pass   as  an  appurtenance 194 

Rules   to    determine   whether   or   not    water   right   passes    as    an    appur- 
tenance   193 

Statute  of  frauds    193 

Construction  of  habendum  clause  in  deed  of  trust 193 

Sheriff's    deed 194 

Right  of  purchaser  under  foreclosure  sale 194 

Conveyance   of   land   only    194 

Effect  of  reservation  of  reservoir  priority  in  deed 195 

See  appropriation   193 

CONSTITUTIONAL  CONSTRUCTION— 

Sec.      Art.  Page 

3          10— Canals  exempt  rrom  taxation  unaer 192 

5-6          16— Do   not   affect   prior  vested   rights— owners   are    entitled   to   com- 
pensation  before  same  can  be  taken 183 

5  16— Right  of  diversion  and  use  guaranteed  under 180 

6  16— Domestic  use  under— that  of  riparian  owner  for  himself,  his  fam- 

ily and  stock   : 183 

6  16— Loan   statutes— not,  in   violation   of 204 

7  16— Guarantees   right  of   private   party   to   condemn   a   right   of  way 

for   ditch  to  convey  water  for  domestic,    mining  and   agricul- 
tural  purposes    174 

8  16— Use  must  be  truly  beneficial 185 

8          16— Status  of  carrier— not  for  proprietor  of  water  diverted 183 

8          16— Defining  powers   of  county  commissioner  to  fix  rate 212 

11          16— Jurisdiction  of  court  to  hear  and  determine  water  priorities 218 

21          25— Map  and  statement  law  unconstitutional   thereunder 191 

CONTRACTS— 

Status  of  consumer  under  contract  with  carrier 197 

Limitation  of  application  of  water 197 

Waiver   of   priority   under 198 

Measure   of  rights    198 

Refusal  of  carrier  to  furnish  water 198 

Liability  of  carrier  for  failure  to  deliver  water 199 

Relation  between  irrigation  company  and -stockholder 199 

Making  stock  do  double  duty , 199 

Rule  of  interpretation— application    200 

Status  of  company  organized  to  take  title  for  benefit  of  purchasers 201 

To  enlarge— right  of  carriage— an  easement   201 

Perpetual  right  to  use  of  water— an  easement  201 

Perpetual  right  of  flow  in  irrigation  ditch— an  easement  201 

With  town  to  construct  water  works 201 

See  Appropriation    197 

CLIMATIC"  CONDITIONS— 

Effect  of    191 

CONSTRUCTION   OF  CONGRESSIONAL  ACTS— 

Act  of  1866,  Sec.  9— proviso  of— compensation  for  injury 174,  184 

Act  of  1866,  Sec.  9— without  proviso— construed  as  granting  right  of  way...  174 

Act  of  1870— Amendatory  of  Act  of  1866 184 

COMMON  LAW— 

Adoption  of 180 

COUNTY  COMMISSIONERS— 

See  Rate  of  Charge  for  Water   212 


283 

COURTS—  Page 

Jurisdiction  of    219 

DAMAGES— 

See  Duties   of   Owners    211 

See  Right  of  Way 174 

See  Condemnation   Proceedings    175 

DECREES— 

Res  judicata  under  claim  of  abandonment   196 

For  agricultural  purposes  does  not  include  right  of  storage 226 

Rendered  under  Acts  of  1879-81— not  res  judicata  as  to  parties  227 

Not  appealed  from  though  erroneous— cannot  be  set  aside  232 

Limited  to  actual  necessity  218 

Modification  of   221 

Not  an  absolute  verity— does  not  protect  claimant   from  abandonment..  223 
Embraces  rights  of  consumer  and  carrier  and  operates  as  an  estoppel 

upon  consumers   in  establishing  their  separate  rights    225 

Action  requesting   modification  of  decree— not  a  proper  action   for  pur- 
pose  of  determining  rights   of  parties   therein    225 

Modification    of— under    3313   Rev.    Stats.— limitations    231 

Transfer    decrees— necessity    of    205 

See   Adjudication   of   Priorities    216 

See  Change  of  Point  of  Diversion— transfer  decree    205 

DOMESTIC  USE- 

Who  may  appropriate 182 

Under  constitution   183 

Right  of  town  or  city  to  take  under  6525  Rev.  Stats 210 

Incident   to   riparian   ownership— sale   of    210 

See   Appropriation 210 

DEED— 

See  conveyance  of  water  rights  193 

EASEMENTS— 

Right  of  way  under  Rev.  Stats.  1868  178 

See  Contracts   201 

Easement  created  by   202 

Irrigation  Divisions   234 

Irrigation  Division   Engineer   235 

Irrigation    Districts.    237 

LOAN  STATUTE— 

Constitutionality   of    .204 

Construction  of   '. 204 

LIENS— 

Statute   creating    132 

LIMITATIONS-STATUTE    OF— 

Does  not  apply  to  decree  obtained  by  fraud 229 

Does  not  apply  to  an  original  proceeding  by  party  who  has  never  had 

his  day  in  court  230 

Two-year  statute  of  limitation  applies  only  to  final  and  absolute  decrees  230 
Four-year  statute  of  limitations  applies  to  actions  by  one  not  a  party  to 

an  original  proceeding   230 

MEASUREMENT   OF  WATER— 

Statutory  inch 133 


284 

PRORATING  STATUTES—  Page 

Constitutionality   of    202 

Constitutional  limitation  of 203 

As  to  decree  being  in  violation  of  203 

PROPERTY  RIGHT— 

Use  of  water— consists  of  182 

RIPARIAN  RIGHTS- 
HOW  affected  by  constitution  179 

Doctrine  of  in  Colorado 179 

Domestic  use  instant  to  riparian  ownership   182 

RELATION-         , 

Doctrine   of    182 

STREAMS— 

Right  to  enter  stream  and  remove  obstructions 190 

Right  to  use  stream  bed  as  reservoir  site  202 

STATE  OF  KANSAS  V.  STATE  OF  COLORADO— 

Opinion  of  U.  S.  Supreme  Court  134 

.TAXATION'— 

Canals  exempt  from   192 

Ditch  used  as  a  means  to  derive  profit  not  exempt  192 

Water  mains  in  public  streets  realty  for  purpose  of  192 

See  Constitutional  Construction  192 

WATER  WORKS— 

Power  of  city  or  town  under  6525  Rev.  Stats.,  page  1511.  to  purchase  or 
erect  water  works    240 

WATER— 

User  of— licensee  209 

User  of— surface  drainage  209 


INDEX  TO  ACTS  PERTAINING  TO  IRRIGATION 
PASSED  BY  1 7th  GENERAL  ASSEMBLY. 


Page. 

Drainage  districts    1 

Irrigation  districts    19 

Irrigation  districts,  priority  of  right  23 

Irrigation  districts,  college  and  school  lands 26 

Act  to  establish  county  of  Jackson ..  29 


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